THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


HINTS 
FOR  FORENSIC  PRACTICE: 

A   MONOGRAPH 

ON  CERTAIN  RULES  APPERTAINING 

TO 

THE  SUBJECT  OF  JUDICIAL  PROOF. 
BY 

THEODORE  F.  C.  DEMAREST, 

Hi 

A.B.,  A.M.,  COLUMBIA  :    LL.B.  :      EDITOB  OF  N.  Y.    SURROGATE 
BEPOKTS.      AUTHOR   OF  A  TREATISE   ON  ELEVATED   RAIL- 
ROAD LAW?  A   STUDY  OF  THE    ABENDROTH  CASE,  ETC. 


"  Reason  is  the  life  of  the  law,  nay,  the  common  law  itself  is 

nothing  else  but  reason The  law,  which  is  perfection  of 

reason."    COKE,  Inst. 

"To  whomsoever,  with  other  than  a  professional  eye,  it  can 
have  happened  to  take  up  a  book  on  the  subject  of  evidence,  be 
the  book  what  it  may,  it  can  scarcely  have  been  long  before  he  saw 
more  or  less  reason  to  suspect  that,  in  the  formation  of  the  mass  of 
rules  of  which  he  found  it  composed,  the  share  taken  by  that  fac- 
ulty which,  when  applied  to  other  subjects,  goes  by  the  name  of 
reason  must  have  been  small  indeed."  BENTHAM,  Introd.  to 
Rationale  of  Jud.  Evidence. 

"Medio  tutissimus  ibis."     OVID,  Metam. 

THE  BANKS  LAW  PUBLISHING  COMPANY, 
21  MURRAY  STREET, 

NEW  YORK.  € 

1906. 


Copyright  1905 
BY  THE  BANKS  LAW  PUBLISHING  COMPANY. 


INTRODUCTORY. 


"Objected  to,  as  incompetent,  irrelevant  and 
immaterial." 

This  particular  objection,  to  the  introduction 
of  evidence,  was  taken  twenty-seven  times  on  the 
trial  of  the  action  reported  in  129  N.  Y.,  at  page 
252;  twenty-two  times  in  the  case  in  149  N.  Y., 
154;  twenty-two  times  in  173  N.  Y.,  549;  nine 
times  in  128  N.  Y.,  571;  and  three  times  in  179 
N.  Y.,  24.  An  echo  from  the  Pacific  coast  is  heard 
in  46  Cal.,  397. 

In  the  celebrated  action  reported  in  90  N.  Y., 
122,  the  distinguished  counsel,  who  officiated  at 
the  trial,  totally  abstained  from  the  use  of  this 
formula,  and,  in  eighteen  instances,  expressed 
their  opposition,  to  evidence  offered,  by  the  first 
two  words  ("objected  to")  of  the  foregoing  quo- 
tation,— a  mode  of  objection  which  they  may 
have  considered  equally  expressive  and  effectual. 

Its  resonant  euphony,  and  an  air  of  erudition, 
not  altogether  dissociated  from  obscurity,  which 
pervades  this  tripartite  specification,  probably 
serve  to  recommend  it  to  the  advocate,  who, 


687411 


11  INTRODUCTORY. 

though  reasonably  sure  that  he  would  rather  dis- 
pense with  particular,  proposed  evidence,  is  not 
prepared,  on  the  spur  of  the  moment,  accurately 
to  state  the  reasons  why  his  preference  should  be 
gratified. 

In  one  case,  counsel  proved  himself  equal  to 
the  feat  of  doubling  the  galaxy,  his  rotund  pro- 
test being,  that  evidence  offered  was  "  incompe- 
tent, irrelevant,  immaterial,  impertinent,  inad- 
missible and  improper."  He  might  have  added, 
"illegal,  injurious  and  intolerable." 

The  opinions  of  the  Courts  teem  with  admo- 
nitions, to  counsel,  of  the  desirability  of  being 
specific  in  their  statements  of  the  grounds  upon 
which  they  oppose  the  introduction  of  evidence, 
on  trials,  and  advising  of  the  serious  consequences 
likely  to  ensue  from  a  deficiency  in  that  respect. 

Is  the  triple,  rhythmical  alliteration,  to  which 
reference  has  been  made,  amenable  to  criticism, 
as  lacking  such  requisite  quality? 

Again,  there  are  decisions  of  high  authority, 
apparently  holding  that  counsel  may,  under  cer- 
tain circumstances,  sit  silent  at  the  time  when  his 
opponent  offers  testimony  or  documents,  without 
precluding  himself  from  subsequently  avoiding 
the  effect  of  the  evidence,  if  admitted  and  deemed, 
by  him,  to  be  harmful  to  his  case. 

In  what  manner  is  this  privilege,  or  possibility, 
to  be  reconciled  with  the  admonitions  mentioned, 
and  with  what  is  believed  to  be  a  more  or  less  gen- 


INTRODUCTORY.  Ill 

eral  impression,  that  the  best,  if  not  the  only  avail- 
able, time  to  start  opposition  to  the  allowance  of 
evidence  is  when  the  adverse  counsel  seeks  its 
admission,  if  the  ground  of  objection  be  then 
apparent? 

An  effort  to  discover  and  explore  the  legal  prin- 
ciples underlying  these  and  allied  queries  was 
the  occasion  of  setting  down  what  is  submitted  to 
the  reader  in  the  following  lines. 


TABLE  OF  CONTENTS. 


PAGB 

COPYRIGHT  PAGE 

INTRODUCTORY i-iii 

TABLE  OF  CONTENTS v 

TABLE  OF  CASES,  etc vii-x 

TABLE  OF  TREATISES,  etc xi 

SECTION   1 .  Of  certain  elementary   terms      .     .  1-34 

Evidence 1-10 

Issue 10-12 

Objection       12-15 

Four  plights  of  objections   .     .     .  15-22 
General  objection  sustained      .  15, 16 
General  objection  overruled      .  16-18 
Specific  objection  sustained      .  18-20 
Specific  objection  overruled      .  21, 22 
"Incompetent,"  "Irrelevant,"  "Im- 
material " :   meanings  .     .     .  23-34 
Etymological  indications .     .     .  23, 24 
Lexicographic  suggestions     .     .  24-26 
Text-writers'  definitions  .     .     .  27-30 

Judicial  definitions 31-34 

SECTION  2.  Cases,  adjudicating  upon  objections.  35-77 
SECTION  3.  Striking  out,  and  disregarding   evi- 
dence       78-105 

SECTION  4.  Motions  to  direct,  and  to  set  aside, 

verdicts      ..........  106-115 

INDEX 117-123 

v 


TABLE  OF  CASES  CITED  IN  THIS  VOLUME. 


PAGE 

Acetta  v.  Zupa,  54  App.  Div.,  33,  34 58 

Adams  v.  Burr,  13  Misc.,  247,  249 63 

Adams  v.  Lloyd,  3  H.  &  N.,  351,  361 31 

Am.  Bank  Note  Co.  v.  N.  Y.  El.  R.  R.  Co.,  129  N.  Y.,  252 

Asbestos  Pulp  Co.  v.  Gardner,  39  App.  Div.,  654 43 

Atkins  v.  Elwell,  45  N.  Y.,  753,  756 32,  44 

Bergmann  v.  Jones,  94  N.  Y.,  51,  58 65 

Brown  v.  Third  Ave.  R.  R.  Co.,  19  Misc.,  504 50 

Charlton  v.  Rose,  24  App.  Div.,  485,  487 42 

Christensen  v.  Met.  St.  R'y  Co.,  137  Fed.  Rep.,  708.  .  114 

Cohn  v.  Mayer  Brewing  Co'.,  38  App.  Div.,  5,  6 107 

Cole  v.  Boardman,  63  N.  H.,  580 31 

Cook  v.  New  Durham,  64  N.  H.,  419,  420 2 

David  Bradley  Mfg.  Co.  v.  Eagle  Mfg.  Co.,  57  Fed. 

Rep.,  980 33 

Dean  v.  ^tna  Life  Ins.  Co.,  2  Hun,  358,  368 97 

Dedric  v.  Hopson,  62  Iowa,  562 33 

Delaney  v.  Hilton,  50  N.  Y.  Superior,  341,  344 100 

Dodge  v.  Cornelius,  168  N.  Y.,  245 21 

Emery  v.  Baltz,  94  N.  Y.,  408,  414 4] 

vii 


Vlll  TABLE    OF    CASES    CITED. 

PAGE 

Fealey  v.  Bull,  163  N.  Y.,  397 109, 113 

Fox  v.  Erbe,  100  App.  Div.,  343,  348 67 

Frankel  v.  Wolf,  7  Misc.,  190,  192 59 

Gawtry  v.  Doane,  51  N.  Y.,  84,  89 81,  96 

Glenville  v.  St.  Louis  R.  Co.,  51  Mo.  App.,  629,  631 ....     60 

Groh's  Sons  v.  Groh,  80  App.  Div.,  85,  94 69 

Groh's  Sons  v.  Groh,  177  N.  Y.,  8,  14 71 

Hamilton  v.  N.  Y.  C.  R.  R.  Co.,  51  N.  Y.,  100 94 

96,  97,  98,  100,  101,  103,  104 

Hemmens  v.  Nelson,  138  N.  Y.,  517,  529 106, 108, 110 

Hine  v.  N.  Y.  El.  R.  R.  Co.,  128  N.  Y.,  517 i 

Hine  v.  N.  Y.  El.  R.  R.  Co.,  149  N.  Y.,  154 i 

Holcombe  v.  Munson,  1  Silv.,  Ct.  of  App.,  228,  233 ....     14 

Horbach  v.  State,  43  Tex.,  242 32 

Hubbell  v.  United  States,  15  Ct.  of  Claims,  546,  606. ..       3 
Huber  v.  Ehlers,  76  App.  Div.,  602,  605 51 

Jackson  v.  Jackson,  100  App.  Div.,  385,  388 61 

James  v.  Ford,  30  State  Rep.,  667,  670 39 

Jenks  v.  Thompson,  179  N.  Y.,  20,  24 i,  54 

Jewel.  Mer.  Agency  v.  Jewel.  Pub.  Co.,  84  Hun,  12, 19     .  .91 

Levy  v.  Campbell,  20  S.  W.  (Tex.),  196 32 

Linkauf  v.  Lombard,  137  N.  Y.,  417,  426. ..  .106,  108, 109 

McCloskey  v.  Davis,  8  Ind.  App.,  190,  197 55 

McDonald  v.  Met.  St.  R'y  Co.,  46  App.  Div.,  143, 146, 147  107 

McDonald  v.  Met.  St.  R'y  Co.,  167  N.  Y.,  66 110 

McKeon  v.  See,  51  N.  Y.,  300,  305. 14 


TABLE    OF    CASES    CITED.  IX 

PAGE 

McLoghlin  v.  Nat.  Mohawk  Vail.  Bank,  65  Hun,  342,  348    48 
McLoghlin  v.  Nat.  Mohawk  Vail.  Bank,  139  N.  Y.,  514, 

522,  523 8,  49 

MacKinstry  v.  Smith,  16  Misc.,  351,  354 51 

Marks  v.  King,  64  N.  Y.,  628,  629 84,  86,  88 

Matter  of  Accounting  of  Morgan,  104  N.  Y.,  74,  86.  .89,  102 

Mead  v.  Bunn,  32  N.  Y.,  279 16 

Mead  v.  Shea,  92  N.  Y.,  122,  127 46 

Miller  v.  Montgomery,  78  N.  Y.,  282,  286 82 

Muhlker  v.  N.  Y.  &  H.  R.  R.  Co.,  173  N.  Y.,  549 i 

Neilson  v.  Mayor,  etc.,  of  N.  Y.,  1  Silv.,  Supr.  Ct.,  471, 

484 101 

New  Orleans,  etc.,  R.  R.  Co.  v.  Moye,  39  Miss.,  374,  385    21 

Ohio,  etc.,  R.  Co.  v.  Walker,  113  Ind.,  196,  200. ...  13, 15,  60 

Pangburn  v.  State,  56  S.  W.  (Tex.),  72 33 

People  v.  Manning,  48  Cal.,  334 33 

Platner  v.  Platner,  78  N.  Y.,  90 31,  86, 188 

Plum  v.  Met.  St.  R'y  Co.,  91  App.  Div.,  420,  422 103 

Pohalski  v.  Ertheiler,  18  Misc.,  33,  35 92 

Pontius  v.  People,  82  N.  Y.,  339,  346 87 

Porter  v.  Valentine,  18  Misc.,  213,  215 14,  32,  33 

Quin  v.  Lloyd,  41  N.  Y.,  349,  354 79, 102 

Roberts  v.  Johnson,  37  N.  Y.  Superior,  157,  160 96 

Rush  v.  French,  1  Ariz.,  99,  125 13 

Ryan  v.  Town  of  Bristol,  63  Conn.,  26 32 

Shaw  v.  Shaw,  1  Dem.,  21,  24 98 


X  TABLE   OF   CASES   CITED. 

PAGE 

Shea  v.  Mabry,  1  Lea  (Tenn.),  319 32 

Shelley's  Case,  1  Coke  Rep.,  946 8 

Slocovich  v.  Orient  Mut.  Ins.  Co.,  108  N.  Y.,  56,  64. ...  66 

Stall  v.  Wilbur,  77  N.  Y.,  162 12 

Sterrett  v.  Third  Nat.  Bank,  122  N.  Y.,  659,  662 14 

Stouter  v.  Man.  R'y  Co.,  127  N.  Y.,  661,  664. 14 

Story  v.  N.  Y.  El.  R.  R.  Co.,  90  N.  Y.,  120 i 

Taylor  v.  N.  Y.  C.,  etc.,  R.  R.  Co.,  63  App.  Div.,  586,  588    37 

Tooley  v.  Bacon,  70  N.  Y.,  34 15,  16,  17,  18,  65 

Tozer  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  105  N.  Y.,  617,  659    64 

Turner  v.  City  of  Newburgh,  109  N.  Y.,  301,  308 63 

Tuttle  v.  Hannegan,  54  N.  Y.,  687 12 

U.  S.  Vinegar  Co.  v.  Schlegel,  143  N.  Y.,  537,  544 90 

Voorman  v.  Voight,  46  Cal.,  392,  397 i,  57 

Voss  v.  State,  9  Ind.  App.,  294 56 

Wallace  v.  Vacuum  Oil  Co.,  128  N.  Y.,  579,  581 47 

Ward  v.  Kilpatrick,  85  N.  Y.,  413 21,  22 

Wilder  v.  Accident  Association,  14  State  Rep.,  365,  367    38 
Witherow  v.  Slayback,  158  N.  Y.,  649,  662 52 


TABLE  OF  TREATISES,  ETC.,  CITED  IN  THIS 
VOLUME. 


PAGE 

Abbott,  Law  Dictionary 24 

Anderson,  Law  Dictionary 24 

Bentham,  Rationale  of  Judicial  Evidence 2,  6 

Best  on  Evidence 2,  4 

Blackstone,  Commentaries 3,  11 

Bouvier,  Law  Dictionary 25 

Bradner  on  Evidence 30 

Burrill,  Law  Dictionary 25 

Century  Dictionary 23,  24 

Cyclopedic  Dictionary 24 

Greenleaf,  on  Evidence 3,  30 

Jones  on  Evidence 29 

Murray,  New  English  Dictionary 23 

Reynolds,  on  Evidence 29 

Solicitor's   Journal 6 

Stephen,  Digest  of  the  Law  of  Evidence 1,  5,  28 

Stephen  on  Pleading 11 

Taylor  on  Evidence 29 

Wharton  on  Evidence 12,  28 

Wigmore  on  Evidence 3,  4 

Words  and  Phrases  Judicially  Defined 3 

xi 


HINTS  FOR  FORENSIC  PRACTICE, 


SECTION    I. 
OP  CERTAIN  ELEMENTARY  TERMS. 

A  feature  of  the  phrase,  "  incompetent,  irrelevant 

Negative    and  immaterial,"   which  attracts  imme- 

character    ^iatc  attention,   is  the  negative  quality 

evidence    of  each  of  the  three  component  words, 

mies.      arising   from    the    common    presence    of 

the   initial,   inseparable   preposition   of  privation, 

a  peculiarity  which   recalls   a   complaint   of  Mr. 

Justice  Stephen,  that  "the  great  bulk  of  the  law 

of  evidence   consists   of  negative   rules  declaring 

what,  as  the  expression  runs,  is  not  evidence."1 

The  particular  subject,  in  hand,  belongs  to  the 
practical  side  of  the  law  of  evidence,  and  its  dis- 
cussion presupposes  an  apprehension  of  the  nature 
and  methods  of  what  may  be  termed  the  Anglican 
system  of  adducing  forensic  proofs,  and  an  appre- 
ciation of  the  true  import  of  certain  terms. 

1  Dig.  of  Law  of  Ev.,  introd. 


f    " 


CERTAIN   ELEMENTARY   TERMS. 

EVIDENCE.  —  This  term,  as  might  be  expected, 
est's  deft-  has  been  copiously  and  variously  defined. 
The  word  evidence"  (evidentia)  "  sig- 
nifies, in  its  original  sense,  the  state  of 
being  evident,  i.  e.,  plain,  apparent  or  notorious. 
But  by  an  almost  peculiar  inflection  of  our  lan- 
guage, it  is  applied  to  that  which  tends  to  render 
evident,  or  to  generate  proof."1 

"  Evidence  is  a  word  of  relation  ....  By  the 

term  ....  seems  in  general   to    be    understood 

Bentham's  any  matter  of  fact,  the  effect,  tendency 

definition    Or  design  of   which,  when  presented  to 

of  evidence.     .  v  •     j  i 

the  mind,  is  to  produce  a  persuasion 
concerning  the  existence  of  some  other  matter  of 
fact  —  a  persuasion  either  affirmative  or  disaffirm- 
ative,  of  its  existence."  This  broad  and  liberal 
definition  is  quoted  in  Cook  v.  New  Durham.3  The 
proposition  contained  in  the  first  clause  of  the 
foregoing  quotation  is  emphasized  by  a  recent 
writer,  who  says:  "  Evidence  is  always  a  relative 
term.  It  signifies  a  relation  between  two  facts, 
the  factum  probandum,  or  proposition  to  be  estab- 
lished, and  the  factum  probans  or  material  evidenc- 
ing the  proposition.4  ...  No  correct  and  sure 

1  Best  on  Ev.,  §11.  two    facts    to     be    considered:  —  1. 

2  Benth.,  Rationale  of  Jud.  Evi-  The  factum  probandum,  or  say,  the 
dence,  bk.  1,  ch.  1.  principal  fact  —  the  fact  the  exist- 

3  64  N.  H.,  419,  420;  1887.  ence  of  which  is   supposed   or  pro- 

4  Con/.     Bentham:      "  In    every  posed  to  be  proved  —  the   fact  evi- 
case,    therefore,    of    circumstantial  denced  to  —  the   fact  which   is  the 
evidence,  there  are  always  at  least  subject  of  proof;  —  2.    the    factum 


DEFINITIONS    OF    EVIDENCE.  3 

comprehension   of    the  nature   of    any  evidential 
question  can  ever  be  had    unless   this  double  or 
relative  aspect  of  it  is  distinctly  pictured."  1 
Blackstone    defined    evidence    as    "that    which 
s  demonstrates,   makes  clear  or  ascertains 


definition    the  truth  of  the  very  fact  or  point  in 

of  evidence.      •  ..-i  •  j  .-i  ,-,  ,,  . 

issue,  either  on  one  side  or  the  other. 
According  to  a  later  writer,  "the  word  evidence, 
in  legal  acceptation,  includes  all  the  means 
by  which  any  alleged  matter  of  fact,  the 

definition  J  v         *  •    i      .  i         •  -  • 

of  evidence,  truth  of  which  is  submitted  to  investiga- 

tion, is  established  or  disproved.7'3 
This  definition  has  had  great  vogue.     A  number 
of  judicial  opinions,  in  which  it  has  been  cited  or 
quoted,   are   mentioned   in   a  recent  encyclopedic 
work.4 

"Evidence,  in  its  narrow  and  technical  sense, 
is  a  machine  for  the  discovery  of  truth, 

Federal  •         i    i  •    •        i    i 

court's  fettered  and  restrained  by  municipal  law 
definition  ancj  by  }ocaj  regulations,  which  vary 
greatly  in  different  countries."  5 

This  group  of  definitions  will  be  concluded  by 
wigmore's  giving  the  learned  and  elaborate  defini- 

e  ™'101  tion  of  evidence,  laid  down  by  a  text- 
evidence.  writer  already  cited:  "Any  knowable  fact 

probans  —  the  evidentiary  fact  —  the       23  Comm.,  367. 
fact  from  the  existence  of   which        3Greenl.  on  Ev.,  §1. 
that   of  the  factum  probandum  is       4  Words  &  Phrases  Jud.  defined, 

inferred"  (Rationale  of   Jud.  Ev.,  2522;  1904. 

bk.  5,  ch.  1).  silubbell  ».  U.  S.,  15    Court  of 

1  1  Wigmore  on  Ev.,  5;  1904.  Claims,  546,  606,  Dissent.;  1879. 


4  CERTAIN    ELEMENTARY    TERMS. 

or  group  of  facts,  not  a  legal  or  a  logical  principle, 
considered  with  a  view  to  its  being  offered  before 
a  legal  tribunal,  for  the  purpose  of  producing  a 
conviction,  positive  or  negative,  on  the  part  of  the 
tribunal,  as  to  the  truth  of  a  proposition,  not  of 
law  or  of  logic,  on  which  the  determination  of  the 
tribunal  is  to  be  asked."  1 

From  the    foregoing,  it  is  clear  that    judicial 
judicial     evidence,  with  which  alone  we  have  now 
evidence     to  do,  is  a  species  of    a  genus.     It  has 
a  species.    keen  Described   as  natural  evidence,   re- 
strained or  modified  by  rules  of  positive  law,  some 
of  which  are  exclusionary  and  others  investitive.2 
The  same   author  indicates  the  character  of   the 
latter  class  of  rules,  thus:  rules  "  in  vesting  natural 
evidence   with   an   artificial  weight,  and  even  in 
some   instances    attributing  the    property  of   evi- 
dence to  that  which,  abstractedly  speaking,  has  no 
probative  force,  at  all."  3 

The  relation  of  logic  to  judicial  evidence  is  un- 

Reiation  of   doubted  and  intimate.     The  Anglican  law 

logic  to     of  evidence  may  be  said  to  consist  of  an 

evidence,    application  of  the  unalterable  principles 

of  logic,  with  exceptions,  from  the  ordinary  results 

of  applying  the  same,  originating  in  a  concern  for 

the  social  safety  or  utility,  and  in  considerations  of 

feasibility  of  judicial  administration,  many  of  the 

latter  being  distinctively  grounded  in  the  regard 

1  Wigmore  on  Ev.,  3;  1904.  3  Ibid. 

2  Best  on  Ev.,  §  34. 


DEFINITIONS    OF    EVIDENCE.  5 

of  the  Courts  for  the  consecrated  right  of  trial  by 
jury.  The  exceptions  so  established  are,  undoubt- 
edly, in  the  main  exclusory;  wherefore,  the  chief 
task  of  the  logician,  entering  the  legal  domain,  is 
to  appreciate,  correlate  and  memorize  the  excep- 
tional exclusions. 

Mr.  Justice  Stephen,  contemplating  these  ex- 
ceptions,  exclaimed  that  he  found  him- 
self  in  "the  position  of  a  person  who, 


of  negative  never  having  seen  a  cat,  is  instructed 
about  them  in  this  fashion  :  '  Lions  are  not 
cats,  nor  are  tigers  nor  leopards,  though  you  might 
be  inclined  to  think  they  were/  Show  me  a  cat, 
to  begin  with,  and  I  at  once  understand  what  is 
meant  by  saying  that  a  lion  is  not  a  cat,  and  why 
it  is  possible  to  call  him  one."  1 

Accordingly,  that  jurist  proposed  an  affirmative 
proposal  to  key  to  the  mystery  encompassing  the 

identify  nature  of  judicial  evidence,  by  submit- 
and  ting  that  —  what  may  be  judicially  proved 


includes  (only)  1st,  all  facts  in  issue,  and 
2d,  all  facts  relevant  to  the  issue.  This  would 
make  relevancy  to  the  issue,  except  in  the  extreme 
(1st)  case  mentioned,  the  sole  criterion,  indeed  the 
synonym,  of  admissibility  of  evidence. 

But   that   proposal   has   been    attacked   by   an 

criticism    acute  writer,  who  insists   that  it  is  only 

of  that     by  an  arbitrary  use  of   the  word,    "re- 

proposai.     ievantj»  that  the  rules  relating  to  rele- 

1  Dig.  of  Law  of  Ev.,  introd. 


6          CERTAIN  ELEMENTARY  TERMS. 

vancy  can  be  brought  within  the  same  class  as  rules 
which  determine  what  classes  of  fact  tend  to  prove 
a  matter  in  question;  and  points  out  that  hear- 
say, being  testimony  reproducing  "  statements 
which,  if  the  persons  making  them  were  called  as 
witnesses,  would  be  perfectly  relevant,"  is  ex- 
cluded because  those  statements  "are  wanting  in 
the  sanction  and  the  tests  which  would  apply  to 
them  if  they  were  so  made,"  the  rule  of  exclusion 
here  being  a  different  one,  and  founded  on  a  dif- 
ferent reason,  and  "the  doubt  and  suspicion  which 
attend  them  being  a  doubt  and  suspicion  attaching 
to  their  accuracy."  1 

The  ultimate  basis  of  our  system  of  the  ad- 
mtimate  duction  of  judicial  evidence,  as  has  often 
basis  of  been  remarked,  is  the  recognized  con- 

Anglican  .  . 

law  of  catenation  of  most  of  the  events  sub- 
evidence,  mitted  to  human  experience  and  observa- 
tion. Seldom  does  a  fact  stand  without  environ- 
ment,— utterly  isolated  and  solitary.  The  relation 
of  causality,  between  two  facts,  is  the  one  of 
principal  significance  to  the  logician  and  the  stu- 
dent of  the  law  of  evidence.2  Aristotle's  dictum, 
de  omni  et  de  nullo,  inevitably  controls  the  processes, 
because  that  philosopher's  discovery  was  of  a 
universal  law  of  mental  operation;  but  the  princi- 
ples of  a  deductive  logic  are  not  the  sole  guide  of 

1  Solicit.  Jour.,  vol.  20,  p.  906.  cause  is  evidence — evidentiary — of 

2"  Every  chain  of  causality  is  a  its  effects  (Benth.,  Rationale  of  Jud. 

chain  of  evidence.     Every  effect  is  Ev.,  bk.  5,  ch.  1,  n.). 

evidentiary   of     its  causes:    every 


LOGIC    AND    EVIDENCE.  7 

the  judge  or  the  advocate,  for  the  reason,  already 
intimated,  that  positive,  municipal  law  has  super- 
imposed various,  mainly  exclusory,  rules.  The 
books  are  filled  with  reminders  of  the  distinction 
between  natural  and  judicial  evidence,  as  also  be- 
tween logical  and  legal  relevancy,  but  the  observa- 
tions there  encountered  are  most  frequently  of  a 
more  or  less  vague  and  general  character. 

An  attempt  will  be  made  to  illustrate  the  ap- 
niustration  plication  of  the  formal  syllogism  to  forensic 

of  the      proof;  which  illustration  will  serve  to  in- 

anTthe'  dicate  and  emphasize  the  legal  differ- 
limitations,  entiation  of  the  ordinary  logical  process: 

of  the          jn  an  action,  brought  by  a  depositor  in 

syllogism,  1          .  .  .          1 

in  forensic  a  bank,  against  the  latter,  to  recover  a 
proof.  balance,  on  account  of  the  principal  of 
his  deposit,  with  interest  thereon,  the  issue,  raised 
by  the  pleadings,  turned  on  the  question  whether 
there  had  been  an  agreement  to  pay  interest. 
Plaintiff  having  produced  evidence  tending  to 
show  such  an  agreement,  defendant  introduced 
evidence  tending  to  show  an  agreement  that  no 
interest  was  to  be  paid,  whereupon  plaintiff,  in 
rebuttal,  offered  evidence  that  he  had  received  in- 
terest on  balances,  on  deposit  in  the  other  banks 
in  the  same  locality;  and  sought  to  show  an  offer, 
made  by  one  of  those  banks,  to  pay  a  specified 
rate  of  interest  on  all  the  money  which  he  had, 
for  deposit;  also  to  show  what  was  the  prevailing 
rate  of  interest  usually  allowed  by  the  local  banks, 


8  THE    SYLLOGISM    IN    COURT. 

on  their  depositors'  balances.  Held,  inadmissible, 
as  "too  remote,"  and  tending  to  raise  " collateral 
issues." 

One  of  the  steps  in  plaintiff's  progress  toward 
the  desired  conclusion,  at  the  trial,  which  the  ap- 
pellate court  condemned,  may,  it  is  believed,  be 
exhibited,  in  its  strictly  logical  aspect,  thus: 

Major  premiss: — What  all  the  local  banks, 
other  than  defendant,  agreed  to  do,  is  (probably) 
what  defendant  agreed  to  do. 

Minor  premiss: — All  the  local  banks,  other  than 
defendant,  agreed  to  pay  interest. 

Conclusion: — Therefore,  defendant  agreed  to  pay 
interest.2 

By  the  ruling  of  the  highest  Court,  adverse  to 
plaintiff's  offer  of  evidence,  the  reasoning 
t  analytically  exhibited  in  the  foregoing 
subversive  syllogism,  which  was  an  instance  of  Bar- 

i logical.  bar(lj  w&s,  by  no  means,  condemned.  All 
that  logic  looks  to  is  the  legitimacy  of  the  act  of 
inferring  the  conclusion  from  the  premisses.  The 
invalidity  of  a  conclusion,  arising  from  fallacies 
(violations  of  the  rules  governing  the  process  of 
inference},  is  the  same,  in  all  reasoning,  legal  and 

1  139  N.  Y.,  514,  523.  in  Richard  Shelley,  and  never  was 

2  "  Argument.     That  which  origi-    vested  in  Edward  Shelley. 

nally  vests  in  the  heir,  and  was  not        "And  therefore   the   use   vested 

in  the  ancestor,  vests  in  the  heir  by    in  Richard  Shelley  by  purchase  " 

purchase.  (Report  of  argument  of  counsel,  in 

"But  this  use  originally  vested    Shelley's  Case,  1  Coke  Rep.,  94  b; 

1579,  A.  D.). 


LOGIC   AND    EVIDENCE.  9 

non-legal.  The  Conclusion,  in  the  foregoing  syl- 
logism, was  a  valid  deduction.  But  the  law — the 
Court — took  exception  to  the  premisses. 

First,  as  to  the  major  premiss.  This  proposi- 
Evidence-  tion,  to  the  extent  of  its  validity,  was  one 
exceptions  obtained  by  induction  and  generalization, 

subvert  the       /•  i .  •  i          l_ 

premisses  from  ordinary  experience  and  observa- 
ofsyiio-  tion.  It  did  not  appear,  in  evidence  or 
gisms.  utterance,  but,  rather,  was  subconsciously 
in  the  reasoner's  mind.  While,  as  the  court  ob- 
served, there  might  be  "what  is  called  moral  evi- 
dence, of  a  more  or  less  convincing"  character,  in 
its  favor,  it  was  rejected  as  being  legally  "too  re- 
mote," i.  e.,  too  far  removed  from  the  legal  standard 
of  probability.  The  degree  of  probability,  in  other 
words,  was  not  sufficiently  high  for  juristic  pur- 
poses. As  soon  as  it  was  determined  to  reject 
this  major  proposition,  the  syllogism  was  doomed, 
and  the  minor  premiss  became  unserviceable,  be- 
cause two  premisses  are  essential  to  every  argu- 
ment. But 

Second.  The   minor  premiss  1  was  excluded  for 
Evidenu-     a  further,  independent   reason,  viz.:   the 
ry  facts     settled  repugnance  of  the  courts  to  the 


are  minor 


raising  of  collateral  issues.     Had  this  evi- 

premisses. 

dentiary  fact  been  admitted,  the  court  and 
jury  would,  thereupon  and  thereby,  have  entered 
upon  the  trial  of  as  many  subordinate  issues,  as  there 
were  local  banks  concerned  in  the  proposed  evidence. 

1  N.  B.     This  was  the  evidentiary  fact. 


10  CERTAIN   ELEMENTARY  TERMS. 

The  Conclusion  of  the  syllogism  was  the  fact  in 
The -Fact    issue;  unless  it  be  better  to  consider  it  as 
in  issue"     serving  as  the  major  premiss  of  a  syl- 
logism, later  in  logical  order,  the  conclu- 
»   sion  of  which  would  be,  that  defendant 
llogism'    was  indebted  to  plaintiff  in  a  specified 
sum,  as  asserted   and  denied,  respectively,  in  the 
pleadings  (the  " issue"). 

The  reasoning,  in  forensic  contests,  as  in  human 
M.  thought  and  action  generally,  proceeds 
r-  ordinarily  in  enthymenies— syllogisms 

acter  of  -,  r         ,  i 

wherein   one    of     the    premisses  is 


-    pressed,  and  a  series  of  which  forms  what 
the  logicians  term  a  sorites.     The  mind, 
in  its  eager  pursuit  of  the  desired,  ultimate  con- 
clusion,  hurries  from  premiss  to  conclusion,   and 
from  the  latter  to  a  new  premiss,  and  thence  to  a 
later  conclusion,  unconscious  of  the  obedience  ren- 
dered by  it,— subject  to  the  possibility  of  a  be- 
trayal into  fallacy, — to  Aristotle's  law.     In  these 
legal  arguments,  specifically  juristic  rules  are  con- 
tinually intervening,  to  thwart  the  progress  along 
strict  logical  lines,  by  demolishing  premisses. 
ISSUE. — Blackstone  has  already  been  quoted,  as 
IMI         referring  to  the  "fact  or  point  in  issue," 
(of fact);  its    and  Mr.  Justice  Stephen,  as  proposing  to 
relation  to    restrict  (or  extend)  all  admissions  of  evi- 
dence to  (1)  facts  in  issue,  and  (2)  facts 
relevant  to  the  issue.     In  pausing,  a  moment,  to 
consider  this  legal  term,  it  is  proposed  to  ignore  the 


common- 


PLEADINGS    AND    ISSUE.  11 

rambling  narratives  of  chancery,  and  keep  in  ex- 
clusive view  the^ultra-refined  system  of  pleading, 
which  grew  up  in  the  common-law  courts,  the  gen- 
eral aim  whereof  was,  to  ensure  "the  orderly  pres- 
entation, upon  the  record,  of  the  contentions  of 
the  respective  parties,  in  relation  to  the  subject- 
matter  of  the  controversy."  1 

This  aim  was  promoted  by  a  series  of  "  plead- 
ings"  (only  one  of  which  was,  possibly, 

i       \       /»    1  1          •  i*  i  * 

&  plea)  ,  following  the  issuance  and  service 
law  of  the  original  writ,  and  commencing  with 
plaintiff's  declaration,  to  which  defend- 
ant might  interpose  his  plea,  which  might  be  suc- 
ceeded, in  alternation,  by  the  replication,  rejoinder, 
rebutter  and  surrebutter.  The  net  result  of  this 
scheme  purported  to  be  "to  compel  the  pleaders 
so  to  manage  their  alternative  allegations  as,  at 
length,  to  arrive  at  some  specific  point  or  matter 
affirmed  on  one  side  and  denied  on  the  other."  3 
This  point  attained,  the  parties  were  said  to  be 
"at  issue"  —  ad  exitum.4 

The  "issue,"  then,  was  literally  the  exitus,  exit 

issue,  the     or  emergence  of   the  contending  parties, 

object  of     from  the  field  of  preparatory  altercation, 

img'     and    entrance    upon    the    stage    of    trial. 

Relevancy 

to  the      The  formation  of  an  issue  was  the  end  of 

issue.       ajj     common-law     pleading.     The   word, 

"issue"   (referring,  now,  to  issues  of  fact,  as  dis- 

1  Steph.  on  PL,  §  2.  3  Steph.  on  PI.,  §  59. 

2  3  Blacks.  Comm.,  310.  */Vrf..-  3  Blacks.  Comm.,  314. 


12  CERTAIN  ELEMENTARY  TERMS. 

tinguished  from  those  of  law)  came  to  denote  the 
fact,  in  regard  to  which  the  parties,  through  the 
sifting  process  of  the  pleadings,  at  length  reached 
the  respective  attitudes  of  affirmation  and  denial. 
This  circumstance  may  explain  the  language  of 
Mr.  Justice  Stephen,  where  he  speaks  of  "  facts 
relevant  to  the  issue,"  and,  in  the  next  sentence, 
of  a  fact  "  relevant  to  another  fact."  * 

It  will  be  remembered,  here,  that  a  "fact  in 
issue"   is  a  conclusion:  to  prove  which 

The  "issue", 

reached  by   conclusion  is  the  function  of  evidentiary 
pleading,  is   facts      gee  Tuttle  v.  Hannegan,  2  and  Stall 
v.  Wilbur,3  where  the  Court   says,  of   a 
complaint,  that  "the  pernicious  practice  was  fol- 
lowed, of  setting  forth  evidence,  instead  of  facts  to 
be  established  by  evidence":  which  raises  a  doubt 
as  to  the   propriety  of    Stephen's    proposed  rule, 
making  the  "fact  in  issue"  admissible  in  evidence. 
"An  issue  is  never  raised  as  to  an  evidential 
NO  issue     fact;  the  only  issues  the  law  knows  are 
iden-  those  which  affirm  or  deny   conclusions 


from  one  or  more  evidential  facts."  4 

OBJECTION.  —  What  is  an  objection  to  evidence? 

objections    To  define  an  objection  is  a  matter  of  no 

to  evidence;  difficulty,  it  being  the  formal,  oral  state- 

ment made  by  counsel,   at  trial,   of  his 

opposition  to  the  introduction  of  a  document  of- 

fered, or  the  allowance  of  an  answer,  by  a  witness, 

1  Dig.  of  Law  of  Ev.,  introd.  377  id.,  on  p.  162. 

2  54  N.  Y.,  on  p.  687.  4  Wharton  on  Ev.,  3d  ed.,  §  26. 


OBJECTIONS    TO   EVIDENCE    CLASSIFIED.  13 

to  a  question  put,  by  his  opponent.     Objections 
have  been  divided  into  general  and  specific. 
A  general  objection  is  where  counsel,  when  evi- 
oenerai     dence  is  offered,  or  called  for,  says:  "I 
objection,    object,"  l  either  without  more,  or  with  ad- 
ditions which  the  law  condemns  for  a  lack  of  pre- 
cision, and  which,   therefore,  fail  to  prevent  the 
objection  from  being  relegated  to  the  " general" 
class. 

A  specific  objection  is  one  in  taking  which  coun- 
speciflc     sel   indicates,   with   satisfactory   definite- 
objection,    ness,  one  or  more  grounds  of  his  opposi- 
tion to  the  introduction  of  the  proposed  evidence. 
It  may  be  safely  stated,  that  a  general  objection 

General     is  aP*  ^°  ^e  harmful  to  the  objector.     "A 

objection     prudent  practitioner  will  hardly  risk  any 

usually  un-   pomt   On  a  general    objection."  2     More- 

advisable.  " 

over,  where  counsel  volunteers  a  general 
objection,  he  may  always  be  compelled  to  make  the 
objection  specific,  at  the  demand  of  his  opponent, 
or  by  the  Court  on  its  own  motion. 

Certain  of  the  settled  principles,  believed  to 
govern  objections  to  evidence,  may  be  noted 
here: 

The   purpose   of   requiring   an   objection   to   be 
TWO  pur-     specific  is  (1)  to  aid  the  trial  judge,  and 
poses  of      (2)  inform  the  opposing  counsel, 
requiring         u  It  fe  of  importance,  that  the  points 

gpeciflcness.      .  111  i  1111 

intended  to  be  taken  on  appeal  should 

i  See  113  Ind.,  200.  2  Rush  v.  French,  1  Ariz.,  99,  125. 


14  CERTAIN   ELEMENTARY   TERMS. 

be  taken  on  the  trial.     It  is  important  that  the 

Notice  to    judge  should  know  what  he  is  called  upon 

judge  and    to  decide,  and  what  is  the  theory  of  the 

objector.     It  is  important,  also,  that  the 

other    side    understand    the    objection    and    its 

point."1 

"If  a  party  calls  upon  the  trial  court  to  make  a 
Foundation  ruling  in  his  favor,  he  must  specify,  with 
tor  allegation  reasonable  clearness,  the  point  that  he 
desires  considered  and  decided,  in  order 
to  predicate  error  upon  an  exception  to  the  ruling 
against  him."2 

"The  object  of  the  rule  requiring  objections  to 

prevention   evidence  to  be  made  specific,  and  to  point 

of  surprise.    ou^  the  precise  defect  existing  therein,  is 

to  prevent  surprise,  and  enable  the  party  offering 

it  to  obviate  such  difficulties  as  are  merely  formal, 

and  can  be  cured  by  reforming  the  question,  or 

which  by  further  proof  can  be  removed,  and  the 

question  rendered  competent."  3 

"It  is  an  ancient  and  sound  rule,  that,  when  the 
objection  to   objection  is  to  the  mode  of  proving  a  fact, 
mode  of     and  not  to  proof  of  the  fact  itself,  it  must 
be  distinctly   placed   upon   that  ground, 
so  that  the  opposite  party  may  obviate  the  ob- 
jection by  proving  the  fact  in  a  legal  manner."  4 

i  McKeon  v.  See,  51  X.  Y.,  300,  3  Holcombe  v.  Munson,  1  Silv.  Ct. 

305.  of  App.,  228,  233. 

2Sterrett».  Third  Xat.  Bank,  122  4  Porter  v.   Valentine,    18  Misc., 

N.  Y.,  659,   662;   Stouter  v.  Man.  213,  215. 
R'y  Co.,  127  id.,  661,  664. 


FOUR   PLIGHTS    OF    OBJECTIONS.  15 

"There  is  reason  for  requiring  the  particular  ob- 
objection,  as  jections  to  be  stated  with  reasonable  cer- 
aid  to  court,  tainty,  for,  in  the  hurry  of  a  trial,  it  can- 
not be  expected  that  particular  objections  will 
occur  to  the  judge,  although,  if  stated,  he  would 
readily  perceive  their  force.  Counsel,  who  are 
presumed  to  have  studied  the  case,  ought  to  be 
able  to  state  the  particular  objections,  and,  if  none 
are  stated,  it  is  fair  to  assume  that  none  exist, 
since  an  objection  that  cannot  be  particularly 
stated  is  not  worth  the  making."  l 

Four  distinct  cases  may  be  presented,  on  a  trial, 
Foursepar-    VIZ' :  wnere  a  general  objection  is  (a)  sus- 
ate plights    tained,    or    (b)    overruled;   and   where   a 
specific    objection    is    (c)    sustained,    or 
(d)     overruled.     The    judicial    rules    be- 
lieved to  prevail  in  these  several    cases,    will  be 
successively  enumerated.     The  first  three  of  those 
rules    are   taken    from   one   Opinion,2   and    given 
hi  the  Court's  own  language.     Though  all  the  re- 
marks of   the   court,  quoted    from   that  Opinion, 
were  not  called  for  by  the  questions  before  it,  the 
rules  therein  stated,   may,   in  view  of  numerous 
judicial  citations,  be  considered  authoritative.     In 
commenting  on  the  four  rules,  in  succession,  the 
party,  proposing  the  evidence  objected  to,  will,  for 
brevity,  be  styled  the  interrogator. 

i  Ohio,  etc.,  R.  Co.  v.  Walker,  113       2  70  N.  Y.,  34. 
Ind.,  196,  200. 


16  GENERAL   OBJECTION;    EFFECT. 

(a)  General  objection  sustained. — "Where  evi- 
oenerai  dence  is  excluded  upon  a  mere  general 
objection  objection,  the  ruling  will  be  upheld,  if 
sustained.  any  groun(j  jn  fact  existed  for  the  ex- 

Effect.  i        .  „   ! 

elusion. 

Comment. — Here,  the  interrogator  appeals.  An 
First  rule  appellant  having  the  burden  of  showing 
considered,  error  in  a  ruling  of  which  he  complains,2 
it  is  obvious  that,  under  this  rule,  the  interrogator, 
in  order  to  secure  a  reversal  of  the  exclusion,  must 
be  able  successfully  to  challenge  his  opponent  to 
point  out  a  single  one  of  all  the  exclusionary  rules, 
relating  either  to  the  form  or  to  the  substance  of 
evidence,  which  justified  the  trial  court's  action. 
Failing  in  this,  the  interrogator  will  be  held  to  have 
waived  precision  in  his  opponent's  objection,  and 
to  have  understood  the  ruling  to  be  based  on  the 
ground  or  grounds  of  exclusion  declared  valid,  on 
the  appeal.  The  words,  "in  fact,"  in  the  language 
of  the  court,  should  not  be  understood  as  implying 
any  contrast  to  the  law,  they  being,  doubtless,  in 
the  nature  of  an  unnecessary  intensive. 

(b)  General  objection  overruled. — "Where  there 
General     ^s  a  general  objection  to  evidence,  and  it 
objection     is  overruled,  and  the  evidence  is  received, 
-overruled.    faQ  ruling  will  not  be  held  erroneous,  un- 
less there  be  some  ground  which  could  not 
have  been  obviated  if  it  had  been  specified,  or  un- 

i  Tooley  v.  Bacon,  70  N.  Y.,  34.         2  Mead  v.  Bunn,  32  N.  Y.,  279. 


GENERAL   OBJECTION    OVERRULED.  17 

less  the  evidence  in  its  essential  nature  be  incom- 
petent." 1 

Comment. — Here,  the  objector  appeals.  It  may 
second  conduce  to  clearness,  in  remarking  upon 
rule  this  rule,  to  throw  it  into  a  form  more 
considered.  nearjy  resembling  that  of  the  preceding 
one,  thus:  Where  evidence  is  received  over  a  mere 
general  objection,  the  ruling  will  be  upheld,  if  the 
interrogator  could  have  obviated  a  specific  ob- 
jection, in  case  such  had  been  made;  which,  pre- 
sumably, he  could  not  have  done  if  the  evidence 
was  so  objectionable  as  to  merit  the  description 
of  being  "in  its  essential  nature  incompetent."  It 
is  impossible  to  discuss,  fully,  the  relations  of  this 
hypothesis  to  this  presumption,  before  settling  the 
meaning  of  "incompetent,"  a  point  not  yet  reached, 
in  the  study.  The  best  that  can  be  done,  at  pres- 
ent, is  to  submit  the  following  description  of  the 
situation  of  the  parties  in  the  appellate  court:  The 
objector  is  attempting  to  secure  a  reversal  of  the 
admission  of  evidence,  and  has  the  onus  of  showing 
that  error  was  committed  below.  He  may  say, 
either:  1st,  "True,  I  only  objected  generally,  but 
that  was  sufficient,  because  the  evidence  was  in  its 
essential  nature  incompetent — meaning  absolutely 
and  incurably  inadmissible — and  such  evidence 
should  have  been  excluded  upon  a  mere  stop- 
word;"  or,  2d,  "I  do  not  contend  that  the  evidence 
was  in  its  essential  nature  incompetent,  but  there 

1  Tooley  v.  Bacon,  ubi  supra. 

2 


18  SPECIFIC  OBJECTION;  EFFECT. 

were  one  or  more  less  radical  grounds  for  its  ex- 
clusion, and,  if  I  had  specified  such  ground  or 
grounds,  on  the  trial,  my  opponent  could  not  have 
obviated  the  difficulty.  Hence,  error." 

(c)  Specific  objection  sustained.  —  Where  evidence 
is  excluded  upon  an  objection,  the  grounds 

Specific  J  ' 

objection     whereof  are  specified,     the  ruling  must  be 


sustained  upon  that  ground,   unless  the 

Effect. 

evidence  excluded  was  in  no  aspect  of  the 
case  competent,  or  could  not  be  made  so."  l 

Comment.  —  Here,  the  interrogator  appeals.  The 
Third  rule  objector  has  succeeded,  below,  in  shutting 
considered.  out  evidence,  on  a  particular  specification 
of  the  ground  of  its  asserted  inadmissibility.  The 
essence  of  the  rule  is  contained  in  the  words,  "upon 
that  ground,"  occurring  therein.  That  is,  the  task 
of  appellant  is,  in  general,  merely  to  subvert  that 
ground  of  exclusion.  Maybe,  the  trial  court  ought 
to  have  shut  out  the  evidence,  but  if  not  on  that 
ground,  he  will  secure  a  reversal  of  the  exclusion. 
It  remains  to  consider  the  two  exceptions.  If,  in 
the  words  of  the  court,  1st,  "the  evidence  excluded 
was  in  no  aspect  of  the  case  competent,"  or, 
2d,  "could  not  be  made  so,"  the  exclusion  will  be 
sustained,  i.  e.,  appellant  will  fail,  though  the  ob- 
jector specified  amiss.  Manifestly,  the  appealing 
interrogator  has  the  onus,  not  only  of  subverting 
his  opponent's  specification,  but  also  of  negativing 
the  two  exceptions.  That  is  to  say,  after  showing 

1  Tooley  v.  Bacon,  ubi  supra. 


SPECIFIC    OBJECTION   SUSTAINED.  19 

that  the  ground,  upon  which  the  evidence  was  ex- 
cluded, is  not  tenable,  he  must  go  further,  and 
show  that  he  is  not  concluded  by  the  residue  of 
the  rule.  That  residue  containing  the  word  "  com- 
petent," it  is,  here  also,  true  that  it  is  impossible 
to  discuss  the  rule  fully,  at  present.  The  following 
observations,  however,  may  be  made:  The  word, 
"or,"  connecting  what  have  been  above  designated 
the  two  exceptions,  should,  almost  certainly,  be 
read  "and,"  because  the  appellant  has  to  meet 
both.  Thus  reconstructed,  the  latter  portion  of 
the  rule  imposes  on  the  appellant  the  task  of  show- 
ing it  to  be  untrue  that  the  evidence  which  he 
offered  "was  in  no  aspect  of  the  case  competent;" 
or  else,  assuming  that  the  evidence  was  of  that 
character,  of  showing  that  he  could  have  made  it 
competent,  if  his  opponent  had  apprised  him  of  the 
defect  by  a  different,  and  correct,  specification. 

At  this  point,  it  must  be  confessed,  a  region  of 
A  difficulty  obscurity  is  entered,  because  of  a  doubt 

stated.  ag  £Q  fae  meaning  of  "in  no  aspect  of  the 
case  competent."  Is  evidence,  so  characterized, 
identical  with  evidence  "in  its  essential  nature  in- 
competent" ?  Apparently  not,  for  it  is  incon- 
ceivable that  evidence  of  the  latter  description 
should  "be  made"  competent.  Hence,  probably, 
the  meaning  of  the  former  phrase  is,  "for  no  pur- 
pose admissible,  when  offered."  Such  an  inter- 
pretation leaves  room  for  an  operation  of  the  hy- 
pothesis, that  the  evidence  is  capable  of  being 


20  SPECIFIC  OBJECTION;  EFFECT. 

made  competent.  Upon  this  assumption,  a  situa- 
tion contemplated  by  the  latter  portion  of  this  rule 
might  occur  as  follows: 

A  party  attempting  to  discredit  his  adversary's 
illustration  witness  by  proving  contradictory  state- 
under  aid  ments  made,  by  the  latter,  out  of  court, 
rule.  without  first  laying  a  foundation  by  in- 
terrogating the  witness  sought  to  be  discredited, 
concerning  such  statements,  is  met  by  an  objection 
to  the  proposed  evidence,  as  hearsay.  The  evi- 
dence is  excluded.  Ordinarily,  the  interrogator, 
on  appeal,  should  secure  a  reversal  of  the  exclu- 
sion ;  for,  if  the  objector  had  made  the  right  specifi- 
cation, the  interrogator  could  have  recalled  the 
witness  sought  to  be  discredited,  for  cross-,  or 
further  cross-examination.  But,  suppose  that  wit- 
ness departs  this  life  between  his  examination  and 
the  attempt  to  impeach  him.  In  such  case,  the 
interrogator  could  not  lay  such  foundation  —  could 
not  make  the  impeaching  evidence  admissible— 
and  the  appellant  must  fail,  i.  e.,  the  ruling  of  the 
trial  court  will  be  sustained.  This  illustration  is 
offered  for  what  it  may  be  worth. 

If  evidence  "in  its  essential  nature  incompetent" 


Evidence  -in 


exciu(jed,  on  a  trial,  under  objection, 

its  essential  '  i      i' 

nature  in-    an  erroneous  specification  of  ground,  by 


competent"   ^g  objector,  oueht  on  principle  to  be  as 

compared  «  M.I-  1 

with  that  -in  free  from  peril  to  him  as  a  mere  general 
no  aspect  of  objection,  which,  as  has  been  seen,  would 

the  case  J  .  ' 

competent."      DC  SUIIlCient. 


SPECIFIC    OBJECTION    OVERRULED.  21 

(d)  Specific  objection  overruled. — Where  a  specific 
objection  is  overruled,  and  the  evidence 

Specific  J 

objection     is  received,  the  rule  appears  to  be,  that 
overruled,    ^g  objector  must  stand  on  his  specifica- 

Effect.  i          MI  i 

tion,  and  will  not  secure  a  reversal  of  the 
admission  of  the  evidence,  on  appeal,  if  he  assigned 
amiss.1 

Comment. — Here,  the  objector  appeals.    This  rule, 

Fourth      if  correctly  stated,  appears  to  be  a  mere 

rule       branch  of  the  rule,  that  a  party  cannot 

considered.       .     •,  •,    •        .•  •  n     j 

take  an  objection  in  an  appellate  court, 
which  he  did  not  take  below.  "It  is  a  general 
rule,  that  a  question  will  not  be  considered,  that 
is  raised  for  the  first  time  in  this  court."  2 

In  Ward  v.  Kilpatrick,  infra,  which  was  an  ac- 

case       tion   to   foreclose   a   mechanic's   lien,   an 

supposed     expert  witness  was  called,   for  plaintiff, 

to  justify  j  i      j  i.         j.  •         ,• 

enunciation  said  asked,  on  his  direct  examination, 
of  whether  certain  frames,  as  set  in  the  house, 
made  a  part  of  the  latter,  and  whether  the 
house  would  be  finished  without  them.  To  which, 
defendant  objected  "as  immaterial,  and  that  the 
mechanic's  lien-law  does  not  authorize  any  lien 
upon  mirror-frames  or  hat-stands."  Objection 
overruled,  and  evidence  received.  On  defendant's 
appeal,  he  urged  that  "the  evidence  of  a  custom 
or  usage"  had  "been  objected  to,"  and  was  "clearly 
inadmissible.  .  .  .  The  evidence  was  incom- 

i  See  Ward  v.  Kilpatrick,  85  N.  Y.,       2  Dodge  v.  Cornelius,  168  N.  Y., 
4! 3.  p.  245;  see,  also,  39  Miss.,  385. 


22  SPECIFIC  OBJECTION;  EFFECT. 

petent,  and  should  have  been  excluded."  The 
Court  of  Appeals  refused  to  sustain  defendant's 
exception,  saying: 

"A  witness,  who  was  a  cabinet-maker,  and  had 
done  that  kind  of  work  in  the  construction  of 
houses,  was  asked  if  these  frames,  as  set  in  the 
house,  made  a  part  of  the  house,  and  if  the  house 
would  be  completely  finished  without  them.  The 
objection  made  was,  not  that  the  opinion  of  the 
witness  upon  the  point  was  incompetent,  but 
merely  that  the  evidence  was  immaterial,  which 
conceded  its  competency,  and  that  the  act  of  1875 
did  not  authorize  a  hen  upon  mirror-frames  or 
hat-stands.  The  objections  taken  furnished  no 
valid  reason  for  rejecting  the  evidence,  and  it  is 
unnecessary  to  debate  the  one  now  urged,  which 
was  not  even  suggested  upon  the  trial."  1 

It  may  be  proper  to  infer  that,  if  the  evidence 

supposed     objected  to,  in  the  case  cited,  had  been 

exception     "in  its  essential  nature  incompetent,"  the 

40         highest  Court  would   have  reversed   the 

fourth  role.          ,       .      .  <•        i  •  T 

admission  of  the  evidence.  In  other 
words,  it  is  suggested  that  the  fourth  rule  is  sub- 
ject to  an  exception,  as  follows:  Where  evidence 
totally  and  incurably  inadmissible  is  received  over 
objection,  a  specific  but  untenable  ground  for  which 
is  stated,  the  error  in  the  specification  will  not  be 
fatal  to  the  objector;  the  admission  will  be  re- 
versed. 

i  85  N.  Y.,  416. 


DERIVATION   OF   CERTAIN   TERMS.  23 

The  next  branch  of  this  study  will  be  to  inquire 
of   into   the   meanings   of  the   three  words, 
akove  quoted  as  frequently  used  in  de- 
» irrelevant,"  scribing  the  ground  of  objection  to  evi- 
"immate-    dence,    (1)    as    indicated    by   etymology, 
(2)  as  given   in  the  law-glossaries,  (3)  as 
stated  in  text-books,  and  (4)  as  announced  in,  or 
inferable  from,  Opinions  of  the  Courts. 

(1)  Etymological  Indications. 

Incompetent. — " Competent"  is  the  present  par- 
••  incompe-    ticiple  of  the  verb  "  compete,"  used,  how- 


tent." 


ever,  in  its  neuter  and  now  obsolete  sense, 

Meaning 

from  of  "to  fall  together;"  the  latter  portion 
Etymology.  of  the  word  being  derived  from  the  latin 
verb  peto,  having  the  same  root  as  the  aorist  of  the 
greek  TTITTTO).  Whence,  "competent"  signifies — fall- 
ing together,  coinciding,  fitting,  admissible.1 

Irrelevant. — "Relevant"   is  from  the  verb  rele- 
-irreievant."  vare,  to  lift  again,  and  so  to  relieve,  help, 
assist:  whence  "relevant,"  by  successive 
shades  of  meaning,  comes  to  signify — to  the  pur- 
pose, germane   (to  a  controversy),  applicable.2 

Immaterial. — "Material"    is    derived    from    the 
"immate-    latin  materia,  matter;  and  the  grades  of 
rial."  id.     meanmg  are — (i)  not  spiritual,   (2)  per- 
taining to  the  matter,  not  to  the  form,  of  a  proposi- 
tion,  (3)  having  such  relation  (to  a  controversy) 

•  i  See  Murray's  New  Eng.  Diet.         2  See  Century  Diet. 


24  CERTAIN    ELEMENTARY   TERMS. 

that    it    ought    to    influence    the    determination, 
(4)    significant.1 

From  this,  it  appears  that  etymology  furnishes 
Results  of    the  following  equivalents:  Incompetent  = 
etymology,    inadmissible ;  irrelevant  =  inapplicable ;  im- 
material =  insignificant. 

(2)  Lexicographic  Suggestions. 

Anderson:  COMPETENT — proper  or  admissible,  as 

Anderson,    evidence.     RELEVANT — as  applied  to  tes- 

Dennitions.   timony,  that  which  directly  touches  upon 

the  issue  made  by  the  pleadings,  so  as  to  " assist" 

in  getting  at  the  truth  of  it.     MATERIAL — of  the 

substance,  essential,  important. 

Abbott:  INCOMPETENT — as  applied  to  evidence: 

Abbott,  not  proper  to  be  received;  inadmissible, 
Id-  as  distinguished  from  that  which  the  court 
should  admit.  IRRELEVANT — not  material  to  an 
issue.  MATERIAL — important;  as  applied  to  evi- 
dence, much  the  same  as  relevant.  Matters  are 
pronounced  material  or  immaterial  to  an  issue, 
with  the  meaning  that  they  are  relevant  or  irrel- 
evant. 

Cyclopedic:  COMPETENCY — in    the    law    of    evi- 

cyciopedic.   dence,    that    quality    of   evidence   which 

Id-        renders  it  proper  to  be  given  on  the  trial 

of  a  cause,  if  it  be  relevant  to  the  issues.     INCOM- 

PETENCY — of  evidence:  not  proper  to  be  received. 

1  See  Century  Diet. 


DICTIONARY    DEFINITIONS.  25 

RELEVANT  —  in  the  law  of  evidence:  having  rela- 

tion;  applicable;  applicable  to  the  issue.     IRREL- 

EVANT —  that  which  does  not  support  the  issue,  and 

which,  of  course,  must  be  excluded.     MATERIAL  — 

that    which   is  essential   or  important.     IMMATE- 

RIAL —  Not  material;   not  essential  or  important. 

Bouvier:  COMPETENT  —  evidence:  that  which  the 

Bouvier.     very  nature  of  the  thing  to  be  proven  re- 

1(L        quires.     RELEVANCY  —  applicability  to  the 

issue;  that  quality  of  evidence  which  renders  it 

properly  applicable  in  determining  the  truth  and 

falsity   of  the   matters  in   issue.     MATERIALITY— 

capability  of  properly  influencing  the  result  of  the 

trial. 

Burrill:  COMPETENCY  —  capability;  admissibility. 

Burrm.      RELEVANT  —  in  the  law  of  evidence:  hav- 

M-        ing  relation;  applicable;  applicable  to  the 

issue.     IMMATERIAL  —  not    material;    not    essential 

or  important. 

It  cannot  be  denied,  that  whatever  light  has 
been  thrown  upon  the  three  words,  "in- 
competent,"  "  irrelevant"  and  "imma- 
teiia!,  "  by  the  inquiry  into  their  deriva- 
tions, and  consultation  of  the  law-diction- 
aries, leaves  a  decided  impression  that 
they  differ  but  little  from  one  another,  in  meaning, 
and,  which  is  of  special  moment,  that  the  idea  run- 
ning through  all  three  is  not  much  more  definite 
than  a  characterization  of  evidence,  offered,  as  un- 
suitable, improper,  inadmissible. 


of 


definitions, 
etc. 


26  CERTAIN    ELEMENTARY   TERMS. 

Were  such  impression  correct  and  indubitable, 
the  result  would  be,  to  relegate  an  objection,  in- 
volving the  use  of  one  or  more  of  the  three  words, 
by  way  of  an  attempt  at  specification  of  ground, 
to  the  class  of  general  objections,  with  the  several 
dangers,  and  contingent  immunities,  to  the  re- 
spective parties,  of  which  a  view  has  been  obtained 
in  the  foregoing  mention  of  certain  rules  of  prac- 
tice. 

It  will  be  noticed  that  one  of  the  law-lexicons, 
-immate-  cited,  expressly  asserts  the  substantial 
iiai,"  not  equivalence,  in  legal  content,  of  imma- 

essentially  .    ..  ,       . 

a  word  of  tenality  and  irrelevancy;  but  a  close 
relation,  scrutiny  may  be  deemed  to  disclose  at 
least  a  linguistic  difference  between  "immaterial," 
on  the  one  hand,  and  each  of  the  two  remaining 
words,  on  the  other, — in  this,  that  "immaterial" 
appears  to  be  less  clearly  a  word  of  relation.  That 
which  coincides  with  (i.  e.,  is  competent),  and  that 
which  assists  (i.  e.,  is  relevant),  call  insistently  for 
the  coincident  object,  and  for  that  to  which  the 
assistance  is  rendered,  respectively;  whereas  "im- 
material" may  be  regarded  as  a  simple  assertion 
of  non-significance  or  vacuity.  In  such  expres- 
sions, however,  as  "material  to,"  which  occur  in 
legal  phraseology,  a  notion  of  relativity  crops 
out,  even  in  this  adjective;  and  so,  it  may  be, 
an  ambiguity  arises,  which  may  explain  diver- 
gences hi  the  expressions  contained  in  judicial 
Opinions. 


DEFINITIONS   BY    COURTS,    ETC.  27 

It   is   next   in   order,   to   attempt   to    ascertain 

Definitions    whether    the    suggested    impressions    of 

similarity,  and  of  a  common  generality, 

treatises 

and  court  in  the  three  words,  is  confirmed  or  modi- 
opinions.  fiecj  by  intimations  contained  in  the  legal 
treatises,  and  in  the  judicial  opinions  upon  which 
the  former  are  founded.  It  is  possible  that  the 
judicial  expressions  and  decisions  will  exhibit  a 
tendency  to  fix  a  technical  import  on  one  or  an- 
other of  the  words,  irrespective  of  etymological 
considerations,  and  even  inconsistent  with  the 
pronouncements  of  the  lexicographers;  authorita- 
tively establishing  differences  among  them,  and 
according  a  specific  quality  to  one  or  more  of  the 
trio. 

In  view  of  the  nature  of  judicial  decisions,  the 
Availability  opinions  of  the  courts  will  not  be  expected 
of  judicial  ^0  prove  a  field  fruitful  in  formal  defini- 
tions of  words.  Rather,  will  information, 
as  to  the  verbal  meanings,  be  obtained  by  inference 
from  adjudications  upon  the  quality  and  suffi- 
ciency of  objections  taken  by  advocates  in  particu- 
lar cases.  In  other  words,  the  search,  in  the  Re- 
ports of  decided  cases,  is  most  likely  to  result  in 
learning  whether  an  actual  objection,  taken  in  a 
particular  cause,  and  involving  the  use  of  one  or 
more  of  the  three  words,  was  held  to  be  general,  or 
specific,  as  distinguished  from  discovering  a  pro- 
crustean  definition  of  any  one. 


28  CERTAIN    ELEMENTARY   TERMS. 

(3)  Text-writers'  Definitions: 
Stephen,  who  proposed  to  identify  relevancy, 
Stephen,  and  admissibility,  suggested  the  following 
on  relevancy,  definition  of  "relevant":  "A  fact  is  rel- 
evant to  another  fact,  when  the  existence  of  one 
can  be  shown  to  be  the  cause,  or  one  of  the  causes, 
or  the  effect  or  one  of  the  effects,  of  the  existence 
of  the  other,  or  when  the  existence  of  the  one, 
either  alone  or  together  with  other  facts,  renders 
the  existence  of  the  other  highly  probable  or  im- 
probable, according  to  the  common  course  of 
events."  l 

The  assertion  may  be  ventured,  that  the  average 

^k       trial-advocate   would   not,    invariably   or 

definition    readily,  entwine  his  apprehension  about 

red-    the  ramifications  of  this  definition,  when 

called  upon  instantly  to  decide  whether  or  not  to 

trust  to  the  word  "irrelevant,"  as  a  specification 

of  the  ground  of  an  objection;  nor  would  he  need 

to,  if  relevancy  and  admissibility  were  synonymous, 

for,  in  such  event,  "irrelevant"  would  clearly  cease 

to   possess   a   specific   import.     The   definition   of 

"relevant,"    above-quoted,    has   been   asserted   to 

have  been  taken  from  an  earlier  Indian  pamphlet, 

and   to   have   been   abandoned   by  the   writer  to 

whom  it  is  generally  attributed. 

According  to  Wharton,  "relevancy  is  that  which 
conduces  to  the  proof  of  a  pertinent  hy- 
pothesis;"  the  hypothesis,  referred  to,  be- 

1  Dig.  of  Law  of  Ev.,  introd. 


TEXTUAL    DEFINITIONS.  29 

ing  one  which,  "if  sustained,  would  logically  in- 
fluence the  issue.  .  .  .  Hence  it  is  relevant  to 
put  in  evidence  any  circumstance  which  tends  to 
make  the  proposition  at  issue  either  more  or  less 
improbable."  * 

"In  view  of  the  complexity  of  human  affairs,  and 

jones,  the  infinite  variety  which  questions  of  fact 
on  relevancy,  assume  in  courts  of  justice,  it  is  obvious 
that  no  definition  of  the  term,  relevancy,  can  be 
very  satisfactory,  or  afford  any  very  practical  aid." 

The  relation,  expressed  by  the  words  "logically 
chamber-  probative  tendency,"  which  one  fact  sus- 

layne,      tains    to    another,    is    termed    relevancy. 

on  relevancy,    «  Qf    ^     th(J    ^    fumisheS    nO    test."  3 

"The  only  practical  rules  that  can  be  formulated, 
Reynolds,  as  to  the  relevancy  of  those  facts  from 
on  relevancy,  the  existence  of  which  a  fact  in  issue  may 
be  probably  inferred,  are  mere  enumerations,  on 
the  one  hand,  of  certain  classes  of  facts  which  have 
been  ascertained  by  experience  to  be  capable  of 
supporting  an  inference,  as  to  other  facts,  suffi- 
ciently probable  to  be  the  foundation  of  a  legal 
judgment,  and,  on  the  other  hand,  of  certain  other 
classes  of  facts  from  which  no  inference  could  be 
drawn  carrying  with  it  such  a  high  degree  of 
probability  as  would  justify  any  court  in  making 
it  the  basis  of  its  decision."  4 

iEv.,  3d.  ed.,  §§  20,  21.  3  Taylor  on  Ev.,  Chamberlayne's 

2  Jones  on  Ev.,  §  136.  Notes,  2. 

4  Reynolds  on  Ev.,  §  6. 


30  CERTAIN    ELEMENTARY   TERMS. 

"As  to  relevancy,  there  is  a  distinction  between 
Bradner,  logical  relevancy  and  legal  relevancy, 
on  relevancy.  §  .  s  .  There  is  a  point,  on  the  ques- 
tion of  relevancy,  where  it  depends  entirely  upon 
the  discretion  of  the  judge,  namely,  in  cases  where 
the  question  is  a  close  one  as  to  whether  certain 
facts  are  too  remote,  although  connected  with  the 
fact  in  issue.  Upon  such  questions,  no  exact  rule 
can  be  formulated."  1 

The  writers  of  treatises  seem  generally,  on  ex- 
oreenieaf.on  animation,  not  to  have  deemed  it  feasible, 
competency.  or  worth  the  while,  to  propound  formal 
definitions  of  competency  of  evidence.  Greenleaf 
appears  to  be  exceptional,  in  this  respect;  he  stat- 
ing that,  "by  competent  evidence  is  meant  that 
which  the  very  nature  of  the  thing  to  be  proved 
requires,  as  the  fit  and  appropriate  proof  in  the 
particular  case."  This  might  perhaps  be  con- 
sidered as  good  a  definition  of  evidence,  as  it  is  of 
competency.  It  is  re-stated,  verbatim,  by  a  later 
author.3 

No  formal  definition  of  "material,"  as  applied  to 
evidence,  has  been  encountered  in  any  of 

Paucity  of  i-ii  i 

textual      the   text-books    which    have    been    con- 
dennition*  of  suited.     Its  near  relative,  "relevant,"  on 
the  other  hand,  is  almost  universally  de- 
fined, and  frequently  discussed  at  length,  hi  those 
works. 

1  Bradner  on  Ev.,  introd.,  ix.  3  Bradner  on  Ev.,  §  13. 

2  Ev.,  16th  ed.,  §  2. 


JUDICIAL   DEFINITIONS   OF  TERMS.  31 

(4)  Judicial  Definitions: 

In  1858,  the  English  Court  of  Exchequer,  dis- 
cussnlg  a  litigated  point,  remarked:  "Am- 
biguity  has  arisen  from  the  word,  rele- 
» relevancy."  vanCy^  being  used  in  different  senses, 
whereas,  if  it  always  had  the  same  meaning,  the 
obscurity  which  surrounds  this  question  would  be 
removed."  J 

In  Platner  v.  Platner,2the  Court  of  Appeals  said: 

"  The  meaning  of  the  word,  relevant,  as  applied 
judicial  to  testimony,  is  that  it  directly  touches 
definition  of  upon  the  issue  which  the  parties  have 
-relevancy."  ma(je  by  their  pleadings,  so  as  to  assist  in 
getting  at  the  truth  of  it.  It  comes  from  the 
French  reliever"  (sic.),  "  which  means  to  assist. 
Whatever  testimony  was  offered,  which  would  as- 
sist in  knowing  which  party  spoke  the  truth  of  the 
issue,  was  relevant;  and  when  to  admit  it  did  not 
override  other  formal  rules  of  evidence,  it  ought 
to  have  been  taken.  .  .  .  Was  the  testimony 
irrelevant?  By  which  is  meant,  in  this  case,  that 
the  connection  between  the  fact  which  it  proves 
and  the  fact  in  issue  is  too  remote  and  conjec- 
tural." 

In  Cole  v.  Boardman,3  it  was  said: 

"  Legal  relevancy  includes  logical  relevancy,  and 

id.        requires  a  higher  standard  of  evidentiary 

force.     A  fact  logically  relevant  may  be  rejected  if, 

i  Adams  v.  Lloyd,  3  H.  &  N.,  351,       *  78  N.  Y.,  90. 
361.  363N.  H.,  580. 


32  CERTAIN   ELEMENTARY  TERMS. 

in  the  opinion  of  the  judge  and  under  the  circum- 
stances of  the  case,  it  be  considered  essentially  mis- 
leading or  too  remote." 

In  Levy  v.  Campbell,1  it  was  said: 
"Relevancy,  as  that  term  is  used  by  writers,  on 
id,        the  law  of  evidence,  omitting  metaphysi- 
cal distinctions,  is  that  which  conduces  to  prove 
a  pertinent  theory  in  a  case,  or  one  which  influences 
or  controls  the  case." 

In  Atkins  v.  Elwell,2  it  was  said: 

"Although,  in  strictness,  the  epithet  of  incom- 

id  of       petent,  applied     ....     to     a     paper 

"incompe-    ....     may  indicate  that     .... 

it  was  objectionable  in  its  form  or  mode  of 

authentication,  rather  than  for  what  it  contained, 

yet  the  common  and  different  use  of  the  phrase 

has  worn  off  the  sharpness  of  this  meaning." 

Greenleafs  definition  of  "competent  evidence" 

judicial     is  quoted,    verbatim,    in  Porter  v.  Valen- 

definitions  of  tine,3    Shea  v.  Mabry,4  and  Horbach   v. 

"  State.5 

In  Ryan  v.  Town  of  Bristol,6  it  was  said: 
"The  real  grievance  of  which  the  defendant  com- 
id.        plains  is,  that  there  was  no  competent  evi- 
dence before  the  jury  upon  the  question  of  con- 
tributory negligence,  and  that  the  court  ought  to 
have  so  told  the  jury  and  in  effect  directed  a  ver- 

i  20  S.  W.  (Tex.),  196.  4 1  Lea,  319. 

M5  N.  Y.,  753.  543  Tex.,  242. 

S18  Misc.,  213.  663  Conn.,  26. 


JUDICIAL    DEFINITIONS   OF  TERMS.  33 

diet  on  this  point.  By  competent  evidence  here 
we  understand  the  defendant  to  mean  relevant 
evidence." 

In  Dedric  v.  Hopson,1  it  was  said: 

"The  word,  incompetency,  is     ....     used 

M  of       to  express  the  thought  that  certain  evi- 

•incompe-    dence  cannot  be  lawfully  received,  or  that 

a  witness  cannot  lawfully  testify.    It  would 

be  quite  properly  used  to  express  the  idea  that  a 

witness  could  not  be  required  to  testify  concerning 

certain  facts." 

In  Porter  v.  Valentine,2  it  was  said: 

"Evidence  offered  in  a  cause,  or  a  question  pro- 

id.  of      pounded,  is  material  when  it  is  relevant 
••material."   an(j  gOes  to  the  substantial  matters  in 
dispute,  or  has  a  legitimate  and  effective  influence 
or  bearing  on  the  decision  of  the  case." 

In  David  Bradley  Mfg.  Co.  v.  Eagle   Mfg.  Co.,3 
it  was  said: 

"Materiality  means  the  property  of  substantial 
id.        importance  or  influence,  especially  as  dis- 
tinguished from  formal  requirement." 

In  Pangburn  v.  State,4  it  was  said: 
"Materiality,  with  reference  to  evidence,   does 
id.        not  have   the  same   signification   as  rel- 
evancy." 

In  Peo.  v.  Manning,5  it  was  said: 

»  62  Iowa,  562.  4  56  S.  W.  (Tex.),  72. 

218  Misc.,  213.  *48Cal.,  335. 

s  57  Fed.  Rep.  980. 
3 


34  CERTAIN    ELEMENTARY   TERMS. 

"There  is  a  wide  distinction  between  imma- 
Difference  terial  and  incompetent  evidence.  It  may 
between  ke  material.  and  tend  to  prove  the  issue, 

"immaterial"  . 

and»incom-   but  uicompetent  for  that  purpose  under 


the  rules  of  law.  On  the  other  hand,  it 
may  be  competent  evidence  in  a  proper  case,  but 
immaterial  to  any  issue  before  the  court."  The 
meaning  of  the  second  sentence  is  obscure. 

From  the  foregoing  definitions,   gathered  from 

inferences    treatises  and  judicial  Opinions,  it  may  be 

from       permissible  to  make  the  following  infer- 

ences:   "  Competent"    means    admissible, 

judicial      and  "  incompetent,"  inadmissible;  where- 

definitions.    £ore^  an  objection  to  evidence,  as  incom- 

petent,   is  absolutely  general,  i.  e.y  affords  no  in- 

timation of  the  ground  of   the   objection  to  the 

admission.     "Relevant"  and  "material"  agree,  in 

referring  to  matter  of  substance,  as  distinguished 

from  technicalities  of  form  or  procedure;  in  other 

words,   relevant  or  material  evidence  is  such  as 

possesses  an  inherent  capacity  or  tendency  to  aid 

in  establishing  or  disproving  the  fact  in  issue.     An 

objection  to  evidence,  as  irrelevant,  or  as  imma- 

terial,   would,    therefore,    seem    to    be     specific. 

Whether  these  tentative  deductions  will  prove  to 

be  supported  by  actual  adjudications,  is  next  to 

be  ascertained. 


SECTION  II. 

CASES,  ADJUDICATING  ON  OBJECTIONS. 

The  decisions,  now  to  be  cited,  passing  on  ob- 
orderof     jections,    taken    to    evidence,    which    in- 
citation      volved  the  use  of  one  or  more  of  the  three 
of  cases.     worcjs  under  examination,  will  be  referred 
to,   in  an  order  of  succession  dependent  on  the 
number  of  those  words  which  were  used  by  the 
objector,  or  were  discussed  by  the  court;   begin- 
ning with  decisions  in  which  only  one  of  the  words 
was  concerned. 

Incompetent,  etc. — In  an  action  brought  to  re- 
incompetent,  cover  damages  for  injuries  suffered  by  a 
passenger,  through  defendant's  negligence 
in  starting  a  train  with  a  sudden  jerk,  while  plain- 
tiff was  alighting  from  a  train,  a  witness  for  plain- 
tiff, who  had  been  sitting  with  the  latter  in  the 
smoking-car,  when  a  dispute  occurred  there,  about 
fare,  between  plaintiff  and  the  conductor,  was 
asked,  on  his  direct  examination,  to  repeat  a  con- 
versation which  occurred  after  that  dispute,  and 
was  had  between  witness  and  the  conductor,  hi 

35 


36  CASES,  ADJUDICATING   ON    OBJECTIONS. 

another  car  into  which  witness  had  gone.  To  this, 
defendant  objected,  as  "  incompetent,  inadmissible, 
and  that  anything  the  conductor  said  to  witness 
in  the  car  next  to  the  smoking-car  was  not  compe- 
tent." The  objection  was  overruled,  and  the  testi- 
mony received,  which  was  to  the  effect  that  the 
conductor  asked  witness  whether  he  was  going  to 
get  off  at  Clyde  (the  station  at  which  plaintiff 
afterwards  alighted),  and  then  said:  "You  want  to 
be  ready  to  get  off.  I  will  get  even  with  those  fel- 
lows." On  defendant's  appeal,  the  court  reversed 
the  admission  of  the  evidence,  observed  that  the 
serious  question  in  the  case  was  whether  the  decla- 
ration of  the  conductor  was  part  of  the  res  gestce, 
held,  that  it  was  not,  and  said: 

"The  plaintiff  insists  that  that  ground  of  in- 
competency  was  not  raised  at  the  trial  .... 
In  this  he  is  clearly  mistaken.  The  objection  was 
taken  that  the  evidence  was  incompetent,  and  that 
raised  then,  and  presents  here,  every  ground  of  in- 
competency  which  could  not  have  been  obviated 
at  the  trial,  had  special  attention  been  called  to  it. 
The  fact  that  they"  (the  declarations)  "were  not 
a  part  of  the  res  gestce,  if  that  be  true,  was  a  reason 
why  they  should  be  held  to  be  incompetent,  and 
when  one  makes  an  objection  which  is  based  upon 
a  right  ground,  the  fact  that  he  does  not  give  every 
reason  why  his  objection  is  well  taken  is  of  no  im- 
portance, provided  that  the  ground  for  the  incom- 
petency  could  not  have  been  obviated,  and  there- 


OBJECTION:  IMMATERIAL.  37 

fore  it  was  not  necessary  that  the  reason  why  the 
incompetency  existed  should  have  been  more  par- 
ticularly stated,  if,  indeed,  we  can  assume  that 
that  was  not  done,  which,  I  think,  cannot  be  fairly 
assumed  from  the  record."  l 

Remark. — This  decision,  it  is  submitted,  was  an 
application  of  rule  "(b)."  The  admission  of  the 
evidence,  by  the  trial  court,  was  erroneous  because 
a  declaration,  not  a  part  of  the  res  gestce,  was,  in  its 
essential  nature,  incompetent.  "  Incompetent " 
was,  therefore,  in  reality,  treated  as  a  general  ob- 
jection. But  the  closing  words  of  the  passage 
quoted  from  the  Opinion  probably  render  the  ref- 
erence to  the  principle  embodied  in  rule  "(b)" 
obiter,  indicating,  as  they  do,  that  the  objector's 
allusion  to  "the  car  next  to  the  smoking-car"  gave 
his  objection  a  specific  character,  and  that  the 
specification  was  accurate,  as  pointing  to  the  ap- 
plicability of  the  rule  of  res  gestce.  "  Inadmissible  " 
evidently  went  for  nothing,  as  an  attempt  at  specifi- 
cation. 

Immaterial. — In  an  action  on  an  accident  pol- 
immateriai.  icy,  it  appeared  that,  in  an  application- 
blank,  which  had  been  filled  out  by  defendant's 
agent,  a  response,  purporting  to  have  been  made 
by  plaintiff,  to  one  of  the  printed  questions,  was  to 
the  effect  that  the  latter  was,  at  the  time,  in  the 
service  of  one  W.  The  defendant,  in  its  Answer 

i  Taylor  v.  N.   Y.  C.,  etc.,  R.  R.  Co.,  63  App.  Div.,  586,  588. 


38  CASES,    ADJUDICATING  ON   OBJECTIONS. 

to  the  Complaint,  alleged  that  this  statement  was 
untrue;  which,  if  substantiated  by  evidence,  would 
have  been  a  defence.  On  the  trial,  plaintiff  was 
permitted  to  testify,  over  defendant's  objection 
that  the  evidence  was  "immaterial,"  that  he,  plain- 
tiff, did  not  so  state,  to  the  agent  who  filled  out  the 
blank.  On  defendant's  appeal,  the  Supreme  Court, 
at  General  Term,  sustained  the  admission  of  the 
evidence,  saying: 

"It  was  competent  to  prove  by  parol  the  actual 
transaction  between  the  insured  and  defendant's 
agent.  The  question  was  perhaps  objectionable  in 
form,  but  the  defendant's  objection  went  to  the 
materiality  of  the  evidence  sought  to  be  elicited, 
and  it  is  now  too  late  for  him  to  insist  that  the 
question  and  answer  were  incompetent  without 
further  explanation  by  the  plaintiff."  1 

Remark. — This  decision  clearly  intimates  that 
"immaterial"  relates  to  substance,  as  distinguished 
from  form,  and  applies  the  rule,  that  one  who  ob- 
jects to  a  fact  being  proved  at  all,  and  is  overruled, 
cannot,  on  appeal,  urge  a  defect  in  the  mode  of 
proof.  It  may  perhaps  be  improper  to  attempt  to 
draw  any  certain  inference,  as  to  whether  the  ap- 
pellate court  considered  the  objection  which  was 
taken  general  or  specific;  unless  it  be  a  correct 
statement  of  doctrine,  to  say  that  an  objection  go- 
ing to  the  substance  of  evidence  is  always  deemed 
specific.  In  such  event,  the  decision  was  an  ap- 

i  Wilder  v.  Accident  Assoc'n,  14  State  Rep.,  365,  367. 


OBJECTION:  IMMATERIAL.  39 

plication  of  rule  "(d);v  objector  specified  amiss, 
on  the  trial,  and  hence  was  remediless,  on  the  ap- 
peal. 

Immaterial. — In  an  action  for  negligence,  the 
immaterial,  plaintiff  was  allowed  to  testify,  over  de- 
fendant's objection  to  the  evidence  as  "  imma- 
terial/' why  he  was  not  positive  who  accompanied 
him  on  his  return  home,  after  the  accident.  On 
defendant's  appeal,  the  N.  Y.  Common  Pleas,  at 
General  Term,  sustained  the  admission  of  the  evi- 
dence, saying : 

"The  objection  was  to  the  materiality  of  the 
evidence,  but  it  appears  that  the  testimony  was 
elicited  to  explain  plaintiff's  statement,  on  cross- 
examination,  that  he  could  not  identify  the  person 
accompanying  him  home,  and,  in  that  connection, 
it  cannot  be  said  to  have  been  immaterial,  and  the 
objection  to  its  materiality  conceded  the  compe- 
tency of  the  evidence." 

Remark. — It  is  supposed  that  this  decision  may 
be  paraphrased  thus: — The  evidence  in  question 
had  a  bearing  on  the  issue,  and  defendant's  con- 
tention to  the  contrary  was  properly  overruled. 
No  inference,  as  to  the  general,  or  the  specific,  char- 
acter of  the  objection  appears  to  be  deducible. 
The  final  clause  of  the  quotation  from  the  Opinion 
seems  to  be  equivalent  to  saying,  that,  when  one 
objects  to  evidence  solely  on  the  ground  that  it 

i  James  v.  Ford,  30  State  Rep.,  667,  670. 


40  CASES,    ADJUDICATING    ON   OBJECTIONS. 

is  foreign  to  the  case,  he  admits  that  there  is  no 
other  objection  to  its  admission. 

Immaterial. — In  an  action  brought  against  the 
immaterial,  sureties  on  the  bond  of  an  INSURANCE 
agent,  to  recover  a  balance  of  the  amount  of  a 
DEFALCATION,  defendants'  Answer  to  the  Complaint 
contained  no  effectual  denial,  but  set  up,  as  a  de- 
fence, certain  events,  to  be  mentioned,  which  were 
alleged  to  have  occurred  before  any  default  on  the 
part  of  the  agent.  On  the  trial,  defendants  offered 
to  prove  that,  after  a  part  of  the  agent's  misappro- 
priation of  funds  had  occurred,  they  had  notified 
plaintiff  of  their  desire  to  withdraw  from  the  bond, 
and  that  plaintiff,  in  order  to  induce  them  to  re- 
main, had  promised  to  take  certain  precautions, 
such  as  requiring  the  agent  to  account  monthly, 
etc.,  which  promise  had  not  been  kept;  whereby 
the  balance  of  indebtedness,  for  which  the  action 
was  brought,  had  accrued.  Plaintiff's  objection  to 
this  evidence,  as  " immaterial,"  was  sustained,  and 
the  evidence  excluded.  On  defendants'  appeal, 
the  court  reversed  the  exclusion,  saying: 

"The  offer  involved  a  defence  for  the  sureties, 
to  some  extent,  and  in  some  amount,  unless  certain 
technical  criticisms  justify  its  rejection.  It  is  said, 
no  such  defence  was  pleaded.  It  was  pleaded  as 
occurring  before  any  default,  and  if  such  objection 
had  been  made,  an  amendment  of  the  Answer  might 
justly  have  been  allowed,  asserting  that  it  occurred 


OBJECTION:  IMMATERIAL.  41 

also  after  default.  ...  If  the  offer  was  very 
general,  the  objection  to  it  was  of  the  same  char- 
acter, merely  that  it  was  immaterial,  and  as  we 
can  see  in  it  the  elements  of  a  possible  defence,  we 
think  it  ought  not  to  be  construed  too  rigidly  for 
the  purpose  of  justifying  its  rejection."  l 

Remark. — Here,  " immaterial"  is  expressly  stated 
to  be  a  general  objection;  and,  on  that  basis,  as  the 
evidence  was  excluded  on  the  trial,  the  decision 
would  fall  under  rule  "(a)."  And  it  might  have 
been  expected  that  the  trial  court  would  have  been 
sustained,  since  a  ground,  pointed  out  by  the  ap- 
pellate court,  existed  for  the  exclusion,  namely :  the 
proposed  evidence  was  not  within  the  pleadings. 
But  the  ruling  below  was  not  upheld,  because  the 
application  of  the  principle  embodied  in  rule  "(a)" 
was  considered,  under  the  particular  circumstances, 
to  be  too  technical.  The  following  view  of  the 
gist  of  this  decision  may  be  permissible:  Notwith- 
standing the  judicial  remark,  that  the  objection  was 
general,  the  case  really  turned  on  the  distinction, 
between  objections  to  form  and  objections  to  sub- 
stance. Plaintiff's  objection,  that  the  evidence  of- 
fered had  no  bearing  on  the  issue,  though  correct 
as  the  Answer  to  the  Complaint  stood,  would  not 
have  been  good,  if  the  trial  court  had  allowed  an 
amendment  of  the  Answer;  and  this  the  Court 
might  have  done,  if  the  objection  had  been  ex- 
plicitly taken,  that  the  evidence  offered  was  not  in 
support  of  the  allegations  of  that  pleading. 

i  Emery  ?'.  Baltz,  94  N.  Y.,  408,  414. 


42          CASES,    ADJUDICATING   ON    OBJECTIONS. 

Incompetent  and  immaterial. — On  the  trial  of  an 

incompetent   action     brought    to    recover  a    balance 

and        alleged    to    be  due    on  a    contract    for 

immaterial.  „ . 

building  a  house,  it  becoming  apparent 
that  plaintiffs  would  be  unable  to  prove  full  per- 
formance of  the  contract,  they  were  permitted, 
over  defendant's  objection  that  the  same  was 
" immaterial  and  incompetent,"  to  give  evidence 
tending  to  show  a  substantial  performance,  and  a 
waiver  as  to  what  was  left  undone.  At  the  close 
of  the  evidence,  the  trial  court,  on  plaintiffs'  mo- 
tion, permitted  the  pleadings  to  be  conformed  to 
the  proof;  which  permission  defendant,  on  his  ap- 
peal, alleged  as  error,  contending  that  such  a 
motion  cannot  be  granted  where  objection  to 
the  admission  of  evidence  is  promptly  taken  on 
the  ground  that  it  does  not  tend  to  support  the 
allegations  of  the  pleading.  But  the  trial  court 
was  sustained,  on  the  appeal,  the  court  saying: 
"This  is  the  rule  correctly  stated;  but  it  does 
not  assist  the  defendant  for  the  reason  that  no 
objection  was  made  by  him,  that  the  evidence  was 
inadmissible  upon  the  ground  that  it  did  not  tend 
to  support  the  allegations  of  the  pleadings.  There 
is  no  case  that  holds  that  the  pleadings  may  not 
be  conformed  to  the  proof  where  the  sole  objection 
to  the  evidence  is,  that  it  is  incompetent  and  im- 
material. .  .  .  The  objection  interposed,  as 
'incompetent  and  immaterial/  is  insufficient  to 
raise  the  question."  1 

i  Charlton  r.  Rose,  24  App.  Div.,  485,  487. 


OBJECTION:  INCOMPETENT  AND  IMMATERIAL.   43 

Remark.  —  Intimation,  that  "incompetent  and 
immaterial"  is  a  general  objection. 

Incompetent  and  immaterial.  —  "There  are  several 
incompetent  exceptions  to  testimony,  urged  on  be- 
and  half  of  the  appellant.  The  difficulty 
immaterial.  with  fa^  criticisms  lies  in  the  fact 
that  the  objections  urged  were  not  sufficiently 
specific.  To  illustrate:  In  one  instance,  a  witness 
on  behalf  of  the  plaintiff  was  inquired  of,  concern- 
ing an  offer  which  purported  to  be  made  by  the 
-  company,  evidently  in  writing.  The  ob- 
jections tendered  were  that  the  proffered  testimony 
was  incompetent  and  immaterial.  It  was  both 
competent  and  material.  Had  the  objections  stated 
that  the  instructions  were  in  writing,  and  that  the 
question  involved  a  conclusion,  they  would  have 
been  available,  and  the  trial  judge  would  then  have 
sustained  the  objections,  and  the  vice  in  the  ques- 
tion could  have  been  eradicated."  l 

Remark.  —  Intimation,  that  "incompetent  and 
immaterial"  is  a  general  objection.  Application  of 
rule  "(b)." 

Incompetent  and  immaterial.  —  A  copy  of  a  "pro- 
test," made  by  the  master  of  a  vessel,  was 

Incompetent  .  .          . 

and       received  in  evidence,   over  an  objection 


immaterial.   ^na^  ft  Was   "immaterial   and   incompe- 
tent."    The  witness  who  produced  the  paper  testi- 

1  Asbestos   Pulp  Co.   r.  Gardner,  39  App.  Div.,  654. 


44  CASES,  ADJUDICATING   ON   OBJECTIONS. 

fied  that  he  had  searched  for  the  original,  and  could 
not  find  it,  and  that  the  copy  was  correct.  On  ap- 
peal, the  court  sustained  the  admission,  saying: 

"The  first  objection  made  by  the  plaintiffs  was 
'to  the  reading  of  the  protest,  as  incompetent  and 
immaterial.'  It  is  now  sought  to  sustain  this  ob- 
jection on  the  ground  that  the  paper  read  was  a 
copy  and  not  the  original.  Such  does  not  appear 
to  have  been  the  explicit  objection  at  the  circuit. 
We  think  that  idea  was  not  conveyed  to  the  mind 
of  the  court.  ...  To  make  the  alleged  defect 
in  the  paper  itself  available  on  review,  the  atten- 
tion of  the  court  and  of  the  opponents  should  have 
been  drawn  with  more  exactness  to  the  specific 
ground  of  objection  now  taken.  Had  this  point, 
that  this  was  but  a  copy,  been  plainly  presented, 
it  might  have  been,  if  indeed  it  was  not,  avoided 
by  preliminary  proof  of  loss  or  destruction  of  the 
original.  By  the  objection,  that  the  reading  of 
the  protest  was  incompetent,  was,  doubtless,  un- 
derstood that,  though,  as  a  general  rule,  the  dec- 
larations of  a  party  made  out  of  court  may  be 
proven  against  him,  still  a  'protest'  was  not  such 
a  declaration  as  came  within  that  rule.  But  it  was 
a  proper  mode  of  showing  a  declaration  of  the 
plaintiffs.  ...  It  spoke  of  matters  material  to 
the  pending  issue,  and  it  furnished  a  proper  mode 
of  establishing  those  matters  against  the  plain- 
tiffs." ' 

i  Atkins  v.  Elwell,  45  N.  Y.,  753,  756. 


OBJECTION:  INCOMPETENT  AND  IMMATERIAL.  45 

Remark. — It  is  to  be  inferred,  that  "  incompetent 
and  immaterial"  is  a  general  objection.  The  case 
seems  to  be  an  application  of  rule  "(b)."  The 
evidence  was  not  in  its  essential  nature  incom- 
petent; and  the  objection,  urged  on  the  appeal,— 
that  the  paper  was  not  the  best  evidence, — might 
perhaps  have  been  obviated  if  it  had  been  taken 
at  the  trial.  Finally,  there  is  ground  for  consider- 
ing the  entire  ruling,  as  to  evidence,  obiter. 

Incompetent  and  immaterial. — In  an  action  upon 
incompetent  contract,  plaintiff  offered  evidence  tend- 

and  ing  directly  to  contradict  testimony  which 
immaterial,  jj  ^  a  witness  for  defendant,  had  given, 
"upon  the  vital  issue  in  the  case;"  which  was  ad- 
mitted over  defendant's  objection  thereto,  as  "im- 
material and  incompetent."  On  defendant's  ap- 
peal, the  court  sustained  the  admission  of  the 
evidence,  saying: 

"We  think  that  this  was  not  only  material,  but 
also  competent.  .  .  .  The  acts  and  declara- 
tions of  a  witness,  which  are  inconsistent  with  his 
testimony,  may  be  given  in  evidence  against  him; 
this  evidence  was,  therefore,  competent,  and  the 
defendant  was  not  entitled  to  have  it  excluded  upon 
the  grounds  stated  by  him.  The  rule,  that  a  party 
seeking  to  avail  himself  of  an  exception  to  the  ad- 
mission of  improper  evidence  on  a  trial  must  point 
out  the  particular  ground  of  his  objection,  is  a 
salutary  one,  and  its  application  here  is  proper  and 


46  CASES,    ADJUDICATING  OX    OBJECTIONS. 

just.  If  the  objection  had  been  taken,  that  H. 
had  not  been  previously  interrogated  in  regard  to 
this  transaction,  it  could  easily  have  been  obviated 
by  calling  him  upon  the  stand,  and  thus  laying  the 
foundation  for  his  contradiction.  A  party  ought 
not  to  be  allowed  to  remain  silent  and  conceal  the 
real  objections  which  he  may  have  to  the  ad- 
missibility  of  evidence,  and  then,  after  misleading 
his  adversary  by  frivolous  objections,  for  the  first 
time  reveal  his  complaint  in  the  appellate  court." 

Remark. — Inference,  that  "  incompetent  and  im- 
material" is  a  general  objection,  and,  particularly, 
that  it  is  bad  where  the  real  objection  is,  not  to  the 
substance  of  evidence,  but  that  a  necessary  pre- 
liminary to  its  introduction  has  not  been  observed. 
"  Incompetent "  seems  to  have  been  considered  too 
general,  and  " immaterial"  inaccurate. 

Incompetent  and  immaterial. — In  an  action  for 
incompetent  negligence,  plaintiff's  physician  was  called 

and  as  a  witness  in  his  behalf,  and  asked,  on 
immaterial.  yg  Direct  examination  i  "  Assuming  the 
man's  age  to  be  ....  years,  and  judging 
from  that,  and  from  the  whole  history  of  his  case, 
and  what  you  have  learned  of  it  in  all  ways,  would 
you  say  that  it  is  your  opinion  that  the  trouble  of 
the  heart  is  likely  to  improve?"  An  objection  to 
this  evidence,  as  " immaterial  and  incompetent," 
was  overruled,  and  the  evidence  was  admitted. 

»  Mead   v.  Shea,  92   N.   Y.,  122,  127. 


OBJECTION:  INCOMPETENT  AND  IMMATERIAL.  47 

The  admission  was  sustained  on  appeal,  the  court 
saying: 

"The  objection  does  not  specify  the  grounds  for 
excluding  the  question,  or  in  what  respects  the 
evidence  called  for  by  the  question  is  improper,  and 
it  is,  in  effect,  general  in  its  nature.  ...  It 
may  be  conceded  that  it  would  suffice,  if  the  ques- 
tion was  altogether  an  improper  one,  or  the  evi- 
dence called  for  in  its  nature  quite  inadmissible. 
But  we  cannot  say  that.  .  .  .  .  The  objec- 
tionable feature  in  the  question  consisted  in  calling 
for  an  opinion  based  upon  witness'  knowledge  de- 
rived from  outside  sources  ....  and  the 
question  allowed  witness  to  state  possible  conse- 
quences, and  such  as  were  speculative  and  not 
reasonably  certain.  .  .  .  Had  the  objection 
stated  these  grounds,  counsel  might  have  changed 
the  form  of  his  question."  1 

Remark. — Intimation,  that  "  incompetent  and 
immaterial"  is  a  general  objection.  Application 
of  rule  "(b)." 

Incompetent,  immaterial,  etc. — In  an  action  against 
incompetent   a  Dank,  the  chief  controversy  was,  whether 
immaterial,   interest  was  to  be  allowed  on  certain  de- 
posits of  money  made  in  the   bank  by 
plaintiff's   testator.     Plaintiffs   having   given   evi- 
dence tending  to  prove  an  agreement  to  pay  in- 
terest, defendant  gave  counter-evidence  tending  to 

i  Wallace  v.  Vacuum  Oil  Co.,  128  N.  Y.,  579-581. 


48  CASES,   ADJUDICATING    ON    OBJECTIONS. 

show  a  subsequent  arrangement  dispensing  with 
interest.  In  rebuttal,  plaintiffs  were  permitted  to 
prove,  over  defendant's  objection  that  the  evi- 
dence was  "  improper,  incompetent  and  imma- 
terial," the  value  of  the  use  of  money  in  the  vicinity; 
also  that  testator  had  money  in  other  local  banks, 
which  paid  interest,  and  that  one  of  those  banks  had 
offered  him  a  specified  rate  of  interest,  for  any 
money  he  might  have,  to  deposit.  On  the  primary 
appeal,  the  Supreme  Court,  at  General  Term,  sus- 
tained the  admission  of  this  evidence,  saying: 

"It  is  relevant  to  put  in  evidence  any  circum- 
stance which  tends  to  make  the  proposition  at  issue 
either  more  or  less  improbable.  The  authorities 
cited  seem  to  uphold  the  doctrine,  that  evidence  of 
circumstances  which  tend  to  make  a  proposition  at 
issue  between  the  parties  improbable  is  admissible 
to  aid  the  court  in  correctly  determining  such 
issue."  * 

But,  on  the  further  appeal,  the  highest  Court 
reversed  the  admission  of  the  evidence,  saying: 

"The  testator's  transactions  with  the  other  banks 
had  no  relation  whatever  with  his  transactions  with 
the  defendant.  .  .  .  While  this  evidence  may 
be  what  is  called  moral  evidence,  more  or  less  con- 
vincing, we  are  satisfied  that  it  was  illegal.  .  .  . 
Evidence  must  legitimately  tend  to  prove  the  issue 
between  the  parties.  In  1  Greenl.  Ev.,  §  52,  it  is 
said:  'This  rule  excludes  all  evidence  of  collateral 

» McLoghlin  v.  Nat.  Mohawk  Vail.  Bank,  65  Hun,  342-348. 


OBJECTION:  INCOMPETENT,  IRRELEVANT,  ETC.  49 

facts,  or  those  which  are  incapable  of  affording  any 
reasonable  presumption  or  inference  as  to  the  prin- 
cipal fact  or  matter  in  dispute.'  .  .  .  Such 
evidence  is  too  remote,  inconclusive  and  uncertain 
in  its  bearing;  and  ....  many  illustrations 
might  be  put,  showing  that  facts  which  constitute 
moral  evidence,  quite  convincing,  may  yet  be  ir- 
relevant, when  tested  by  legal  rules." 

Remark. — The  words  " improper"  and  " incom- 
petent," used  by  the  objector,  seem  to  have  played 
no  part  in  the  ultimate  decision.  On  the  other 
hand,  " immaterial"  appears  to  have  been  treated 
as  equivalent  to  " irrelevant,"  and  to  have  been 
held  specific,  and  correct  as  a  statement  of  the 
ground  of  objection.  Hence,  on  the  ultimate  ap- 
peal, the  objector  stood  successfully  on  an  objec- 
tion taken  at  the  trial.  Application  of  rule  "(d)." 

Incompetent,  irrelevant  and  immaterial. — In  an  ac- 
tion brought  to  recover  for  personal  in- 
incompetent,  .  .  .     .          .      .  .  ,,    , 

irrelevant    juries,  plaintiff  s  physician  was  called  as 

^d  a  witness  in  her  behalf,  and  asked,  on  his 
ial'  direct  examination:  "In  your  opinion,  is 
she  likely  to  recover?"  An  objection  to  this,  as  "in- 
competent, irrelevant  and  immaterial,"  was  over- 
ruled, and  the  evidence  admitted.  On  defendant's 
appeal,  the  Supreme  Court,  at  the  Appellate  Term, 
sustained  the  admission,  and,  in  response  to  a  con- 
tention of  objector,  that  the  evidence  called  for 

1  Same  case,  on  ultimate  appeal,  139  N.  Y.,  514,  522. 
4 


50          CASES,    ADJUDICATING    ON    OBJECTIONS. 

was  "improperly  allowed  because  it  was  not  based 
on  personal  observation,  because  its  scope  was  not 
limited,  and  it  did  not  appear  that  everything  upon 
which  it  was  based  had  been  presented  in  evidence, 
and  that  it  was  speculative,  conjectural  and  elimi- 
nated the  element"  (sic)  "of  reasonable  certainty, 
and  that  it  allowed  an  opinion  based  in  part  upon 
facts  outside  of  the  evidence,"  said: 

"None  of  these  grounds  of  objection  was  taken 
at  the  trial,  when,  if  it  had  been,  it  could  have  been 
obviated  by  other  inquiry  of  the  witness.  .  .  . 
Such  objection  does  not  specify  the  grounds  for 
excluding  the  question,  or  in  what  respects  the 
evidence  called  for  by  the  question  is  improper, 
and  it  is,  in  effect,  general  in  its  character. "  * 

Remark. — Inference,  that  adding  "irrelevant" 
to  "incompetent  and  immaterial"  does  not  give 
the  objection  a  specific  character. 

Incompetent,   irrelevant  and  immaterial. — In   an 

action  brought  by  an  attorney,  to  recover 

^irrZTanr  ^OT  professional  services  rendered,  a  paper 

and  offered  by  the  plaintiff  was  admitted,  over 
immaterial,  defendant's  objection  that  it  was  "in- 
competent, irrelevant  and  immaterial,"  On  de- 
fendant's appeal,  the  Supreme  Court,  at  the  Ap- 
pellate Term,  sustained  the  admission  saying: 

"This  objection  did  not  raise  the  question,  now 

i  Brown  v.  Third  Av.  R.  R.  Co.,    Vacuum  Oil  Co.,  128   N.    Y.,  su- 
19   Misc.,  504;    citing    Wallace    v.    pro. 


OBJECTION:  INCOMPETENT,  IRRELEVANT,  ETC.  51 

argued,  that  it  was  not  duly  executed,  not  a  bind- 
ing or  valid  agreement,  and  that  defendant  was  not 
a  party  to  it."  l 

Remark. — Inference,  that  "incompetent,  irrel- 
evant and  immaterial"  is  a  general  objection. 

Incompetent,  irrelevant  and  immaterial. — A  copy 
of  the  record  of  a  court,  other  than  the 

Incompetent,  . 

irrelevant    court  in  which  the  trial  was  in  progress, 
411(1       was  received  in  evidence,  over  an  objec- 
tion that  it  was  "  incompetent,  irrelevant 
and  immaterial."     On  appeal,  the  admission  of  the 
evidence  was  sustained,  the  court  saying  that  the 
objection   was   insufficient   to   raise   the   question 
whether   the   clerk's   certificate,    attached   to   the 
paper,  complied  with  statutory  requirements.2 

Remark. — Inference,  that  " incompetent,  irrele- 
vant and  immaterial"  is  a  general  objection,  and 
particularly,  that  it  is  bad  as  a  statement  of  the 
basis  of  opposition  to  evidence,  based  on  the  ground 
of  form. 

Incompetent,   irrelevant  and  immaterial. — In   an 
action  brought  against  the  directors  of  a 

Incompetent,  .  /••!  /-«i       • 

irrelevant    corporation,  based  on  a  failure  to  file  its 
and        annual  report,  to  recover  the  amount  of  a 

immaterial.  *  i  111* 

promissory  note,  made  payable  to  plain- 
tiff's order  and  indorsed  by  the  corporation,  which 

1  MacKinstry  v.  Smith,  16  Misc.,        2  Huber  v.  Ehlera,  76  App.  Div., 
351,  354;  citing  Wallace  v.  Vacuum    602,  605. 
Oil  Co.,  128  N.  Y.,  supra. 


52  CASES,    ADJUDICATING   ON  OBJECTIONS. 

note  was  given  in  settlement  of  a  contract  between 
plaintiff  and  the  maker  of  the  note,  for  work  to  be 
done  by  the  former  for  the  latter,  it  appeared,  on 
the  trial,  that  this  contract  had  been  turned  over 
by  the  maker  of  the  note,  one  of  the  parties  to  the 
contract,  to  the  corporation;  and  it  became  proper 
for  the  plaintiff  to  show  that  the  corporation  had 
entered  into  an  engagement  to  relieve  the  maker 
of  the  note  from  liability  to  make  payments  accru- 
ing under  the  contract.  The  maker  of  the  note 
was  called  as  a  witness  for  plaintiff,  and  was  asked, 
on  his  direct  examination:  "Did  the  company  agree 
to  relieve  you  from  the  payments  which  you  were 
to  make?"  To  this  defendants  objected,  as  "im- 
material, irrelevant  and  incompetent  because  it  is 
not  the  best  evidence."  The  objection  was  sus- 
tained, and  the  evidence  excluded.  On  plaintiff's 
appeal,  the  court  declined  to  reverse  the  exclusion, 
saying: 

"This  was  objected  to  as  immaterial,  irrelevant 
and  incompetent  because  it  is  not  the  best  evi- 
dence. There  was  no  evidence  that  the  agreement 
was  in  writing.  The  proper  objection  to  the  ques- 
tion was  that  it  called  for  a  conclusion  as  to  the 
nature  of  the  agreement.  As  the  error  in  this  rul- 
ing was  at  best  technical,  the  plaintiff  is  not  in  a 
position  to  urge  his  exception.  The  information 
sought  for  was  relevant  under  a  proper  form  of 
question."  * 

i  Witherow  v.   Slayback,  158  N.  Y.,  649,  662. 


OBJECTION:  INCOMPETENT,  IRRELEVANT,  ETC.  53 

Remark. — The  feature  of  this  decision,  which  first 
attracts  notice,  is  that  the  ruling  of  the  trial  court, 
excluding  the  evidence,  was  held  to  be  erroneous, 
and  yet  that  ruling  was  upheld,  because  the  error 
was  technical.  The  only  possible  reason  why  the 
exclusion  of  the  evidence  was  error,  is  that  the  ob- 
jection was  sufficient.  There  is  a  clear  intimation 
that  so  much  of  the  objection  as  referred  to  "the 
best  evidence"  was  bad.  Hence  "immaterial/'  or 
"irrelevant,"  or  both  of  those  words,  must  have 
been  deemed  sufficient.  Those  words  do  not  seem 
to  have  been  distinguished,  in  the  decision;  and 
the  gist  of  the  intimation,  on  the  subject  of  the 
quality  of  the  objection,  is  believed  to  be,  that 
"irrelevant"  was  specific  and  (technically)  accu- 
rate— the  evidence  was  irrelevant,  but  would  have 
been  "relevant  under  a  proper  form  of  question." 
Inasmuch,  however,  as  plaintiff  secured  a  new  trial 
on  other  grounds,  these  remarks,  about  evidence 
and  the  objection  thereto,  were,  doubtless,  obiter. 

Incompetent,   irrelevant  and  immaterial. — In   an 

action  brought  by  an  employee  of  a  con- 
incompetent,  °  » 

irrelevant    tractor,  against  his  master,  to  recover  for 
and        injuries  suffered  in  falling  from  a  scaffold, 

immaterial.  ..  «  i    ••     j  •  M>        j»i  •  i  • 

a  witness  tor  plaintiff,  after  evidence  given, 
tending  to  qualify  him  as  an  expert,  was  asked,  on 
his  direct  examination:  (1)  whether  a  scaffold,  de- 
scribed in  the  question,  was  a  safe  and  suitable  one 
for  a  man  of  a  specified  weight;  (2)  what  the  cus- 


54         CASES,    ADJUDICATING  ON   OBJECTIONS. 

torn  was,  in  New  York,  with  regard  to  building 
scaffolds  for  men  to  work  upon;  and  (3)  what  the 
custom  was  as  to  the  building  of  scaffolds,  in  New 
York,  by  contractors,  for  carpenters  to  work  upon. 
Each  time,  the  defendant  objected  to  the  evidence, 
as  "incompetent,  irrelevant  and  immaterial;"  and 
the  objection  was  sustained,  and  the  evidence  ex- 
cluded. On  plaintiff's  appeal,  the  court  reversed 
the  exclusion,  saying: 

"That  the  trial  court  erred  in  rejecting  much 
of  this  evidence,  there  can  be  no  doubt.  It  was 
not  objected  to  or  rejected  because  of  the  incom- 
petency  of  the  witnesses.  If  that  had  been  the 
objection,  it  would  have  been  a  fair  matter  for  the 
trial  judge  to  determine,  whether  the  witnesses  had 
the  requisite  knowledge  or  qualifications  to  give  an 
opinion,  or  state  facts  as  experts,  and  would  not  be 
a  subject  for  review,  unless  against  the  evidence, 
or  without  support  hi  the  facts  appearing  in  the 
case.  But  the  rules  determining  the  subjects  upon 
which  experts  may  testify  are  questions  of  law. 
The  latter  is  the  character  of  the  rulings  in  this 
case,  as  the  only  objection  was  that  the  evidence 
was  incompetent,  irrelevant  and  immaterial,  and 
it  was  rejected  upon  that  ground.  Obviously,  the 
evidence  offered  was  competent,  relevant  and  ma- 
terial." 1 

Remark.  Inference,  that  "  incompetent,  irrel- 
evant and  immaterial"  is  not  a  good  objection  to 

i  Jenks  v.  Thompson,  179  N.  Y.,  20,  24. 


OBJECTION:  INCOMPETENT,  IRRELEVANT,  ETC.  55 

the  competency  of  a  witness,  to  give  testimony. 
The  last  sentence,  quoted  from  the  Opinion,  is  not, 
it  is  supposed,  to  be  taken  as  implying  that  "com- 
petent," "relevant"  and  "material"  have,  each,  a 
separate  and  distinct  meaning,  and  that  the  evi- 
dence in  question  was  possessed  of  each  of  the 
qualities  expressed  by  these  adjectives,  but  merely 
as  asserting  that  the  evidence  was  wholly  unob- 
jectionable. Hence  no  objection  could  have  pre- 
vailed, and  no  inference  can  be  drawn  from  this 
decision,  as  to  whether  "incompetent,  irrelevant 
and  immaterial"  is  a  general  or  a  specific  objection. 

Incompetent,  irrelevant  and  immaterial. — "To  ob- 
ject to  the  introduction  of  evidence,  be- 

Incompetent,  .  .  . 

irrelevant    cause    irrelevant,    incompetent    and    im- 
and        material,  presents  no  question  for  review 

immaterial.  i  i  j_i  •  j  -j.      f 

on  appeal,  unless  the  evidence  on  its  face 
appears  to  be  incompetent."  a 

Remark. — This  quotation  from  an  Opinion  of  a 
court  of  Indiana  is  almost  identical  with  rule 
"(b),"  for  the  Report  of  the  case  shows  that  this 
objection  was  overruled  at  the  trial,  and  the  ex- 
ception held  bad,  on  appeal.  The  closing  reference, 
to  evidence  on  its  face  appearing  to  be  incompe- 
tent, is  supposed  to  be  equivalent  to  a  reference 
to  "evidence  in  its  essential  nature  incompetent," 
i.  e.,  that  which  is  manifestly  and  incurably  inad- 
missible. 

i  McCloskey  v.  Davis,  8  Ind.  App.,  190,  197. 


56          CASES,    ADJUDICATING  ON    OBJECTIONS. 

Incompetent,  irrelevant  and  immaterial. — "  Objec- 
tions to  evidence,  that  it  is  irrelevant,  in- 

Incompeteiit,  .  . 

irrelevant    competent  and  immaterial,  are  generally 
and        too  general,  indefinite  and  uncertain  to 

immaterial.  .  .  .         ,  i   .  ,    ,  <   , 

present  any  question  in  this  court. 
Remark. — The  Report  of  this  case  shows  that 
the  trial  court  admitted  evidence  over  the  objec- 
tion indicated,  and  this  ruling  was  held,  on  appeal, 
not  to  be  erroneous,  the  evidence  being  proper  for 
a  particular  purpose,  mentioned.  Application  of 
rule"(b)." 

Incompetent,  irrelevant  and  immaterial. — In  an  ac- 
tion brought,  by  the  vendors  against  the 

Incompetent,  °       '        * 

irrelevant  vendee  and  his  guarantor,  to  recover  a 
and  balance  of  the  stipulated  price  of  goods 
sold  and  delivered,  the  defence  was  de- 
fect in  quality,  and  failure  to  deliver  in  proper 
packages.  On  the  trial,  one  of  the  plaintiffs,  called 
as  a  witness  in  plaintiffs'  behalf,  was  asked,  on  his 
direct  examination,  whether  the  vendee  assigned 
any  reason  for  not  paying  the  full  amount,  and, 
if  so,  what  reason.  The  other  plaintiff,  in  like 
manner,  was  asked  whether,  at  any  time  after  the 
contract  was  made,  and  the  goods  were  delivered, 
any  offer  was  made,  on  the  part  of  defendants  or 
either  of  them,  to  return  the  goods,  or  any  part 
thereof.  An  objection  to  this  evidence,  as  "  irrel- 
evant, incompetent  and  immaterial,"  made  on  the 

1  Voss  v.  State,  9  Ind.  App.,  294. 


OBJECTION:  INCOMPETENT,  IRRELEVANT,  ETC.  57 

part  of  the  defendants,  was  overruled,  and  the 
evidence  admitted.  On  defendants'  appeal,  the 
Supreme  Court  sustained  the  admission  saying: 

"The  objections  were  general,  against  their  ad- 
missibility  for  any  purpose  whatever.  It  is  clear 
enough  that,  had  the  vendee  been  the  sole  defend- 
ant in  the  action,  the  evidence  objected  to  would 
have  been  admissible  as  against  him.  If,  as  to 
his  co-defendant,  a  different  rule  would  obtain,  by 
reason  of  the  latter  being  a  guarantor  only,  a  ques- 
tion not  necessary  to  consider,  the  objection  should 
have  been  limited  accordingly,  or  an  instruction 
asked."  1 

Remark. — Inference,  that  " incompetent,  irrele- 
vant and  immaterial"  is  a  general  objection,  and  of 
no  more  efficiency  than  " inadmissible,"  or  "im- 
proper." 

Incompetent,   irrelevant  and  immaterial. — In   an 
action  brought  by  a  physician,  to  recover 

Incompetent,  /••  i  •  •  !_•    1_      At 

irrelevant     for   professional    services,    in    which    the 
and        Answer  of  defendant  denied  that  plain- 
tiff was  duly  qualified,  registered  and  au- 
thorized to  practice  medicine  in  the  county,  after 
proof  that  plaintiff  was  a  regular  physician,  de- 
fendant offered  in  evidence  a  volume  purporting 
to  be  a  register  of  physicians,  to  substantiate  her 
denial.     To  this  plaintiff  objected,  as  "incompe- 
tent, irrelevant  and  immaterial;"  whereupon  the 

i  Voorman  v.  Voight,  46  Gal.,  392,  397. 


58  CASES,    ADJUDICATING   ON   OBJECTIONS. 

evidence  was  excluded.  On  defendant's  appeal, 
this  ruling  was  reversed,  the  court  saying: 

"The  exclusion  of  the  record  was  error.  The 
objection  was  that  it  was  incompetent,  immaterial 
and  irrelevant.  No  specific  ground  for  the  objec- 
tion was  given.  The  record  was  offered  as,  and 
stated  to  be,  a  public  register  of  physicians  and 
surgeons  of  Kings  County,  and  this  was  not  ques- 
tioned. If  the  plaintiff  had  desired  to  raise  a  ques- 
tion as  to  its  being  a  public  record,  his  objection 
should  have  been  specific,  and  the  defendant  then 
would  have  been  called  upon  to  prove  the  authen- 
ticity of  the  volume  by  showing  the  source  of  its 
production,  and  that  it  was  kept  by  authority. 
No  such  objection  having  been  made,  we  must  as- 
sume it  to  have  been  waived."  l 

Remark. — "Incompetent,  irrelevant  and  imma- 
terial" is  a  general  objection.  The  decision  is  an 
application  of  a  corollary  of  rule  "(a)."  The  rul- 
ing of  the  trial  court,  excluding  the  evidence  upon 
a  mere  general  objection,  was  not  upheld,  on  ap- 
peal, because  no  "ground  in  fact  existed  for  the 
exclusion." 

Incompetent,   irrelevant,   immaterial,   etc. — In   an 

action  to  recover  commissions  for  effect- 
incompetent,  . 

irrelevant,    ing  a  sale  of  chattels,  the  purchaser  hav- 
i,   jng  been  called  as  a  witness  for  defendant, 
and  testified  that  plaintiff  was  not  the 

i  Acetta  v.  Zupa,  54  App.  Div.,  33,  34. 


OBJECTION:  INCOMPETENT,  IRRELEVANT,  ETC.  59 

procuring  cause  of  the  sale,  a  witness  for  plaintiff 
was  allowed  to  testify  to  a  statement  made  by  the 
purchaser,  out  of  court,  inconsistent  with  his  testi- 
mony, over  defendant's  objection  to  the  evidence, 
as  "incompetent,  irrelevant  and  immaterial,  and 
that  it  was  not  in  the  presence  of  defendant."  On 
defendant's  appeal,  the  General  Term  of  the  New 
York  Common  Pleas  sustained  the  admission  of  the 
evidence,  saying: 

"The  objection  was  made  upon  the  general 
grounds  of  incompetency,  irrelevancy  and  im- 
materiality, the  specific  ground  stated  being  that 
it  was  not  in  the  presence  of  defendant.  This 
latter  ground  presented  no  proper  objection,  and 
the  general  grounds  advanced  did  not  call  for  the 
exclusion  of  the  evidence.  It  was  properly  ad- 
mitted for  the  purpose  of  contradiction,  and  the 
technical  objection  of  incompetency,  etc.,  cannot 
be  considered  as  raising  the  question  of  its  proper 
foundation  where  such  objection  could  have  been 
obviated  by  proof  upon  the  trial."  l 

Remark. — Inference,  that  "incompetent,  irrele- 
vant and  immaterial"  is  a  general  objection.  The 
condemnation  of  this  portion  of  the  objection  was 
an  application  of  rule  "(b)";  and  that  of  the  re- 
mainder of  the  objection,  an  application  of  rule 
"(d)." 

i  Frankel  v.  Wolf,  7  Misc.,  190,  192. 


60          CASES,    ADJUDICATING   ON    OBJECTIONS. 

Incompetent.     Irrelevant.     Immaterial. — "It  may 
incompetent  m  many  cases  suffice  to  object  to  evidence 
irrelevant,    as  irrelevant,  because  the  irrelevancy  of 
immaterial.   fae  evidence  is-  self -apparent,  but  it  is  in 
no  case  a  sufficient  specification,  to  say  that  the 
evidence  is  incompetent,  because  the  reason  for  the 
claim  of  incompetency  can  always  be  fully  stated. 
The  general  terms  of  objection,   immaterial  and 
impertinent,  are  mere  epithets,  and,  in  their  ap- 
plication to  evidence,  have  no  legal  meaning."  1 

Remark. — Inferences,  that  (1)  "incompetent"  is 
general,  (2)  "irrelevant"  is  specific,  and  (3)  "im- 
material" is  unmeaning. 

Incompetent.     Irrelevant  and  immaterial. — "It  is 
not  enough  to  state  that  the  evidence  is 

Incompetent; 

irrelevant    incompetent,  or  that  it  is  immaterial  and 
and       irrelevant.     This  much  is  implied  in  the 

immaterial.  /•  <•       i    •        ,  •  -r,     • 

mere  fact  of  objecting.  .  .  .  It  is  no 
answer  to  the  proposition  asserted  by  the  author- 
ities" (i.  e.,  that  objections,  to  be  of  any  avail, 
must  be  reasonably  specific),  "to  say  that  the  evi- 
dence itself  may  reveal  the  objection,  for  this  may 
be  said  of  all  incompetent  and  irrelevant  evidence, 
when  carefully  scrutinized." 

Remark. — Inference,  that  "incompetent,"  uttered 
alone,  equally  with  "immaterial  and  irrelevant,"  is 
a  general  objection. 

1  Glenville  v.  St.  Louis  R.  Co.,  51        2  Ohio,    etc.,  R.  Co.  v.  Walker, 
Mo.  App.,  629,  631.  113  Ind.,  196,  200. 


OBJECTION:  IRRELEVANT,  IMMATERIAL,  ETC.  61 

Irrelevant,  immaterial,  etc. — In  an  action  for  an 
irrelevant    accounting  as  to  partnership  transactions, 
immaterial,    brought  by  the  personal  representative  of 
a   deceased   partner,    plaintiff   offered   in 
evidence  certain  letters  written  by  her  testator, 
and  letters  written  by  testator's  attorney,  to  de- 
fendant,   asking    for    information    concerning   the 
assets  and  liabilities  of  the  firm,  and  containing 
propositions  with  a  view  to  an  adjustment  and  a 
settlement;  to  most  of  which  letters  there  had  been 
no  reply.     The  letters  were  received  in  evidence, 
over  defendant's  objection  that  they  were  "  irrel- 
evant,  immaterial  and   declarations  in  plaintiff's 
own  favor."     On  defendant's  appeal,  the  court  sus- 
tained the  admission  of  the  evidence,  saying: 

"Some  of  these  letters  to  which  no  reply  was 
made  may  be  subject  to  the  objection  that  they 
contain  declarations  in  favor  of  the  plaintiff;  but 
it  is  to  be  borne  in  mind  that  this  is  an  equity  suit, 
in  which  a  reversal  should  not  be  had  for  an  error 
in  the  admission  of  evidence  unless  it  was  manifestly 
prejudicial.  The  plaintiff  had  a  right  to  show  that 
he  endeavored  to  adjust  the  matter  before  bringing 
the  action,  as  this  would  have  a  material  bearing 
upon  the  question  of  costs.  We  are  of  opinion 
that,  although  the  reception  of  some  of  the  letters, 
without  limiting  their  bearing,  may  have  been 
erroneous,  it  does  not  constitute  substantial  error 
or  require  a  reversal."  l 

1  Jackson  ?;.   Jackson,    100   App.  Div.,  385,  388. 


62  CASES,    ADJUDICATING   ON   OBJECTIONS. 

Remark. — Here,  apparently,  " irrelevant"  and 
"immaterial"  went  for  nothing.  The  rest  of  the 
objection  was  specific  and  accurate;  and  the  de- 
cision sustaining  the  admission  of  evidence  over  a 
good  objection  is  valuable  as  an  illustration  of  the 
rule  that,  in  equitable  actions,  less  strictness  is 
observed,  in  condemning  the  admission  of  objec- 
tionable evidence,  than  in  those  tried  with  a  jury. 

No  ground  of  objection  stated. — In  an  action 
NO  ground  brought  to  recover  damages  for  injuries 
of  objection  suffered  by  plaintiff,  through  falling  in 

stated.  fae  gtreet  Of  a  city,  in  consequence  of  de- 
fendant's negligence,  physicians,  called  for  plain- 
tiff, were  permitted  to  testify  as  to  the  cause  of 
plaintiff's  ill-health,  defendant  opposing  the  in- 
troduction of  the  evidence  by  using  the  words  "  ob- 
jected to."  On  defendant's  appeal,  the  court  sus- 
tained the  admission  of  the  evidence,  saying: 

"  These  objections  were  general,  and  failed  to 
specify  any  grounds.  This  court  has  held,  that, 
where  the  objection  to  evidence  is  general,  and  it 
is  overruled,  and  the  evidence  is  received,  the  rul- 
ing will  not  be  held  erroneous,  unless  there  be  some 
grounds  which  could  not  have  been  obviated  had 
they  been  specified,  or  unless  the  evidence  in  its 
essential  nature  be  incompetent.  .  .  .  But  the 
questions  addressed  to  the  physicians,  calling  for 
their  opinions  as  to  whether  the  physical  condi- 
tion in  which  they  found  the  plaintiff  to  be,  upon 


OBJECTION:  GROUND  NOT  STATED.  63 

their  examination  of  her,  could  have  resulted  from 
a  fall,  were  not  objectionable  and  infringed  upon 
no  rules  of  evidence."  J 

Remark.— Application  of  rule  "(b)." 

No  ground  of  objection  stated. — "In  no  instance 
NO  round  was  ^^e  ground  of  objection  to  evidence 
of  objection  offered  stated,  which  omission  renders 

stated.  ^e  exception  valueless  for  purposes  of  re- 
view, the  evidence  admitted  being  intrinsically 
competent."  2 

Remark. — This  passage  from  an  Opinion  has  been 
quoted  because  of  its  use  of  the  expression  "evi- 
dence intrinsically  competent,"  which  is  supposed 
to  be  equivalent  to  "evidence  not  in  its  essential 
nature  incompetent." 

No  ground  of  objection  stated. — In  an  action  to 
NO  ground  recover  damages  for  injury  suffered  at  a 
of  objection  railroad  crossing,  two  physicians,  called 

stated.  ag  witnesses  for  plaintiff,  were  asked,  on 
their  direct  examinations,  to  testify  as  to  future 
consequences  of  the  injury.  Fourteen  times  de- 
fendant's counsel  interposed  the  words,  "objected 
to,"  and,  in  each  instance,  the  evidence  was  re- 
ceived. On  defendant's  appeal,  the  court  re- 
versed a  judgment  for  plaintiff,  on  the  ground  of 
error  in  the  admission  of  the  evidence;  and  plain- 
tiff's motion  for  a  re-argument,  based  on  the  alleged 

1  Turner  v.  City  of  Newburgh,  2  Adams  v.  Burr,  13  Misc.,  247, 
109  N.  Y.,  301,  308.  249. 


64          CASES,   ADJUDICATING   ON    OBJECTIONS. 

insufficiency  of  the  objections,  was  denied,  the  court 
saying: 

"In  deciding  upon  the  appeal  in  this  case,  it  did 
not  escape  our  attention  that  the  objections  to  the 
admission  of  the  evidence,  which  we  held  to  be 
incompetent,  were  general.  That  point  was  dis- 
cussed in  consultation,  but  we  consider  that  the 
evidence  was  in  its  nature  inadmissible,  as  it  re- 
lated to  speculative  and  conjectural  possible  future 
consequences  which  might  be  apprehended  from 
the  injury,  and  how  long  after  the  injury  such  con- 
sequences might  be  developed.  The  course  of  the 
examination  shows  that  the  ground  of  the  objec- 
tions could  not  have  been  misunderstood,  and  if  it 
had  been  specified  in  the  objections,  could  not  have 
been  obviated."  l 

Remark. — Application  of  rule  "(b)."  The  pas- 
sage quoted  is  valuable  as  indicating,  with  satis- 
factory clearness,  that  the  words,  "in  its  essential 
nature  incompetent,"  in  that  rule,  are  the  equiva- 
lent of  the  words,  "in  its  nature  inadmissible;" 
whence  an  inference  that  incompetency,  predicated 
of  evidence,  without  qualification,  is  nothing  more 
nor  less  than  inadmissibility. 

No  ground  of  objection  stated. — In  an  action  for 
NO  ground  ^el,  plaintiff,  testifying  in  his  own  behalf, 
of  objection  was  allowed  to  give  evidence  tending  to 

stated.      snow  the  amount  of  damage  caused  to  his 

i  Tozer  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  105  N.  Y.,  617,  659. 


OBJECTION:  WRONG  SPECIFICATION.          65 

business,  over  objections,  by  defendant,  which  are 
stated,  in  the  record,  thus:  " Defendant's  counsel 
objects."  On  defendant's  appeal,  the  admission 
of  the  evidence  was  sustained,  the  court  saying: 

"The  objections  of  the  defendant's  counsel,  to 
the  questions  put,  were  general  in  their  character, 
and  stated  no  specific  ground  upon  which  the  testi- 
mony should  be  excluded.  The  counsel  for  the 
appellant  claims  that  the  proof  of  special  damages 
was  not  admissible  under  the  pleadings  because  it 
was  not  properly  pleaded.  Had  this  point  been" 
taken  on  the  trial,  and  the  objection  held  to  be 
valid,  the  judge  had  the  power  to  allow  an  amend- 
ment of  the  pleadings  upon  such  terms  as  would 
be  proper  and  just,  and,  had  he  done  so,  the  ob- 
jection might  have  been  obviated.  The  rule  is 
well  established,  that,  where  there  is  a  general  ob- 
jection to  evidence,  and  it  is  overruled,  and  the 
evidence  is  received,  the  ruling  will  not  be  held 
erroneous,  unless  there  be  some  grounds  which 
could  not  have  been  obviated,  or  unless  the  evi- 
dence in  its  essential  nature  be  incompetent."  a 

Remark. — Follows  Tooley  v.  Bacon,  supra.2  Ap- 
plies rule  "(b)." 

Wrong  specification. — In   an  action   brought  to 

recover  on  a  policy  of  marine  insurance, 

w™ng      jn  which  an  issue  was  raised  as  to  the 

specification. 

value  of  the  vessel  concerned,  an  expert 

i  Bergmann  v.  Jones,  94  N.  Y.,        2  70  N.  Y.  34. 
51,  58. 

5 


66          CASES,    ADJUDICATING  ON   OBJECTIONS. 

witness  was  called,  for  plaintiff,  and  permitted,  on 
his  direct  examination,  to  testify  as  to  the  value, 
over  defendant's  objection  "that  the  witness  had 
no  personal  knowledge  of  the  vessel."  On  de- 
fendant's appeal,  the  admission  of  the  evidence 
was  sustained,  the  court  saying: 

"It  was  not  a  sufficient  objection  to  the  com- 
petency of  this  witness,  that  he  had  no  personal 
knowledge  of  the  ship.  An  expert  is  qualified  to 
give  evidence  as  to  things  which  he  has  never  seen. 
He  may  base  an  opinion  upon  facts  proved  by  other 
witnesses,  or  upon  facts  assumed  and  embraced 
within  the  case.  .  .  .  There  was  no  objection 
that  the  witness  did  not  have  sufficient  facts  be- 
fore him,  upon  which  to  base  his  opinion  as  to  the 
value  of  the  ship.  The  sole  objection  was,  that 
he  did  not  have  personal  knowledge  of  the  vessel. 
It  seems  to  have  been  assumed  that  the  character, 
condition  and  quality  of  the  vessel  were  sufficiently 
proved,  and  that  all  the  conditions  existed,  which 
would  qualify  the  witness  to  give  an  opinion  as  to 
value,  except  that  of  personal  knowledge ;  and  that, 
as  we  have  seen,  was  not  necessary.  If  the  de- 
fendant had  requested  that  the  facts  appearing  in 
the  evidence  should  be  assumed,  and  stated  in  a 
hypothetical  question,  it  is  fair  to  assume  that  his 
request  would  have  been  complied  with."  1 

Remark. — Application  of  rule  "(d)." 

i  Slocovich   v.  Orient  Mut.  Ins.  Co.,  108  N.  Y.,  56,  64. 


OBJECTION:  IMMATERIAL,  IRRELEVANT,  ETC.    67 

Immaterial.     Irrelevant. — In  an  equitable  action, 
immaterial,  brought  to  set  aside  transfers  of  personal 
irrelevant,   property,  the  court,  on  appeal,  referred  to 
certain  evidence  admitted  on  the  trial  as  follows : 
"It  may  be,  that  some  of  this  testimony  was  im- 
material upon  the  issue,  but  the  bulk  of  it  was  not 
only  material  and  relevant,  but  important  as  bear- 
ing upon  the  issue  litigated.     So  far  as  it  was  im- 
material or  irrelevant  to  the  issue,  it  did  not  work 
harm  to  the  defendants.     .     .     ..   There  is  noth- 
ing, therefore,  in  the  rulings  upon  the  admissibility 
of  evidence  upon  the  trial  which  calls  for  reversal 
of  the  judgment."  ' 

Remark. — Possible  inference,  that  "material" 
and  "relevant,"  also  "immaterial"  and  "irrele- 
vant," as  applied  to  evidence,  are,  severally,  sub- 
stantial synonyms.  Also,  a  reminder  that,  in 
equitable  actions,  an  inference  of  prejudice  from 
the  allowance  of  immaterial  evidence  is  not  readily 
indulged. 

Immaterial.    Irrelevant.    Incompetent. — In  an  ac- 

immateriai.  ^loii  brought  by  a  business  corporation, 

irrelevant,    successor  to  a  brewing  firm,  a  family  af- 

t-  fair,  against  the  personal  representatives 

of  a  deceased  member  of  the  firm  and  of  the  family, 

to  recover  moneys  alleged  to  have  been  received 

by  said  decedent,  for  the  account  of  the  firm,  and 

not  accounted  for,  and  moneys  alleged  to  have  been 

i  Fox  v.   Erbe,  100    App.    Div.,  343,  348. 


68  CASES,    ADJUDICATING  ON   OBJECTIONS. 

obtained  by  him,  from  the  firm,  by  false  repre-, 
sentations  (one  of  the  two  defendants  having  died 
pendente  lite,  and  before  trial),  the  Answer  to  the 
Complaint  contained,  besides  a  general  denial,  al- 
legations purporting  to  be  by  way  of  defence, 
which,  however,  were  not  germane  to  the  real  issue, 
but  related  to  transactions  between  F.,  an  attorney, 
and  the  surviving  defendant,  individually,  and  to 
acts  of  the  plaintiff  corporation  in  paying  salaries 
to  its  officers.  As  tending  to  sustain  those  irrele- 
vant allegations  of  the  Answer,  defendant  was  per- 
mitted to  introduce  evidence  of  an  agreement  be- 
tween F.  and  said  surviving  defendant,  who  was  a 
stockholder,  under  which  the  former  purchased, 
for  $150,000,  the  stock  and  bonds  of  the  latter,  of 
the  par  value  of  $550,000;  also  evidence  to  the  ef- 
fect that  F.,  who  had  been  elected  president  of  the 
corporation,  received  a  salary  of  $15,000,  a  year, 
afterwards  increased  to  $25,000,  and  that  his 
brother-in-law  received  $5,200,  a  year,  as  vice- 
president,  etc.  To  this  evidence  plaintiff  objected, 
as  "  immaterial."  The  trial  court  overruled  the 
objection,  saying:  "It  may  have  no  bearing  at  all, 
but  I  think  it  proper  to  allow  it  in  the  case  for  what 
it  may  hereafter  be  worth."  A  verdict  and  a  judg- 
ment having  been  rendered  in  favor  of  defendant, 
the  Appellate  Division,  on  defendant's  appeal,  sus- 
tained the  admission  of  the  evidence  because  the 
objections  to  the  improper  evidence  were  regarded 
as  insufficient,  saying: 


OBJECTION:  IMMATERIAL,  IRRELEVANT,  ETC.    69 

"The  basis  of  the  objection  was,  that  it  was  im- 
material to  any  issue  presented  by  the  pleadings. 
The  plaintiff,  however,  nowhere  claimed,  upon  the 
trial,  that  it  was  prejudiced  by  the  introduction 
of  such  testimony.  Its  sole  complaint  was  that  it 
was  immaterial  as  bearing  upon  any  issue.  Upon 
this  appeal,  it  is  argued,  that  it  was  not  only  im- 
material, but  incompetent,  improper  and  preju- 
dicial. It  was  the  duty  of  counsel  to  call  the  court's 
attention  to  the  ground  of  objection.  Had  the 
court's  attention  been  called  thereto,  doubtless  it 
would  have  excluded  it,  or  it  might  have  been 
withdrawn.  The  question  as  now  sought  to  be 
presented  was  not  raised.  When  the  objection  was 
made  that  the  testimony  was  immaterial,  it  was 
conceded  to  be  competent." 

Remark. — A  noticeable  feature  of  this  Opinion  is, 
the  intimation  that,  where  counsel  objects  to  evi- 
dence as  " immaterial,"  and  is  overruled,  and  after- 
wards urges,  on  appeal,  that  the  evidence  was  "in- 
competent, improper  and  prejudicial,"  he  makes  a 
new  contention,  i.  e.,  one  which  he  did  not  bring  to 
the  attention  of  the  court  below.  It  might  have 
been  supposed  that  a  presumption  of  prejudice 
arises  from  the  allowance  of  immaterial  evidence 
over  an  objection  to  it,  taken  on  the  ground  of  its 
immateriality;  and  it  is  difficult  to  see  how  urging 
incompetency  and  impropriety  involved  a  change 
of  base. 

i  Groh's  Sons   v.  Groh,  80   App.  Div.,  85,  94. 


70  CASES,    ADJUDICATING   ON  OBJECTIONS. 

On  the  further  appeal,  the  highest  Court  re- 
versed the  admission  of  the  evidence,  declaring 
the  objection  taken  on  the  trial  sufficient,  and 
saying: 

"The  judgment  was  affirmed  because  the  objec- 
tions to  the  improper  evidence  were  regarded  as 
insufficient.  We  entertain  a  different  view.  When 
evidence  is  immaterial,  and  is  objected  to  on  that 
specific  ground,  the  objection  is  well  taken,  because 
it  points  out  the  precise  ground  upon  which  the 
evidence  should  be  excluded,  and  that  is  all  the 
objector  is  required  to  do.  It  frequently  happens 
that  evidence  which  is  immaterial  is  also  incom- 
petent and  irrelevant,  and  in  that  event  it  may 
properly  be  objected  to  on  all  or  either  of  these 
grounds.  It  is  equally  true,  that  evidence  may  be 
incompetent  but  neither  immaterial  nor  irrelevant, 
or  vice-versa,  hi  which  case  the  objection  may  and 
should  be  urged  upon  the  precise  ground  that  pro- 
vokes it.  And  the  reason  of  the  rule  is  plain.  If 
evidence  is  admissible  upon  one  ground,  and  is  ob- 
jected to  upon  another  ground,  the  trial  court  is 
not  advised  of  the  true  reason  for  its  rejection,  and 
the  objector  is  held  to  have  waived  it.  In  the  case 
at  bar,  some  of  the  evidence  objected  to  was  im- 
material, irrelevant  and  incompetent.  It  might 
have  been  objected  to  on  all  or  each  of  these 
grounds.  It  was  objected  to  only  as  being  im- 
material. It  was,  however,  so  utterly  and  clearly 
immaterial,  as  to  point  out  clearly  its  incompe- 


OBJECTION:  IMMATERIAL  71 

tency  as  well  as  its  irrelevancy.  The  objection 
having  been  taken  upon  a  ground  that  was  proper 
and  precise,  and  being  obviously  suggestive  of  the 
other  two  grounds  upon  which  the  evidence  might 
have  been  excluded,  we  think  the  cases  cited  by  the 
learned  Appellate  Division  in  support  of  the  con- 
clusion that  the  objections  herein  were  not  properly 
taken  have  no  application."  l 

Remark. — The  observations  which  will  be  made 
on  this  decision  of  the  highest  Court  will  be  com- 
prised under  two  heads: 

First,  as  to  what  was  held. — It  is  necessary  to 
assume  a  meaning  of  " material,"  and  of  " imma- 
terial." Accordingly,  the  latter  term  will  be  as- 
sumed to  mean,  as  applied  to  evidence,  that  which 
has  no  bearing  on  the  issue.  Such  an  objection 
manifestly  goes  to  the  substance.  Here,  then,  it 
is  squarely  held,  that,  when  proposed  evidence  is 
" immaterial,"  an  objection  employing  (only)  that 
word  is  specific,  and  well  taken.  Does  this  decision 
imply,  or  even  leave  room  for  an  inference  that,  if 
evidence  that  is  material  were  objected  to  as 
" immaterial,"  the  objection  would  not  be  specific? 
It  is  believed  not.  If  evidence  really  material 
were  objected  to  as  immaterial,  the  objection 
would  not  be  well  taken,  but  its  specific  character 
would  not  be  altered.  An  illustration  will  de- 
monstrate this.  Suppose  that  evidence  is  objected 
to  on  the  ground  that  it  does  not  come  within  the 

i  Id.,  177  N.  Y.,  8,  14. 


72          CASES,   ADJUDICATING   ON   OBJECTIONS. 

pleadings,  and  a  proper  construction  of  the  plead- 
ings leads  to  the  conclusion  that  the  objector  is 
mistaken.  Obviously,  the  objection  is  specific, 
notwithstanding  the  error  in  the  contention.  A 
specific  objection  is  one  which  points  out  the  precise 
ground  upon  which  it  is  contended  that  the  evi- 
dence ought  to  be  excluded.  So  that  we  have, 
at  length,  an  explicit  and  authoritative  decision 
that  " immaterial,"  as  an  objection  to  the  admis- 
sion of  evidence,  is  always  specific. 

Second,  as  to  other  intimations,  to  be  gathered 
from  this  Opinion.  —The  statement,  that  it  fre- 
quently happens,  that  evidence  which  is  imma- 
terial is  also  incompetent  and  irrelevant,  properly 
implies  that  such  is  not  invariably  the  case;  i.  e., 
there  is  evidence  which  is  immaterial  and  yet  can- 
not be  said  to  be  both  incompetent  and  irrelevant. 
But  whether  this  last  proposition  involves  a  doc- 
trine that  there  may  be  evidence  which  is  imma- 
terial but  not  irrelevant,  quceref  Again,  it  is  said, 
that  evidence  may  be  incompetent,  but  neither 
immaterial  nor  irrelevant,  or  vice-versa.  It  is  diffi- 
cult to  determine  what  the  converse  proposition, 
indicated  in  this  alternative  is.  The  most  man- 
ageable interpretation  of  the  entire  expression  is, 
that  (1)  evidence  may  be  inadmissible,  for  some  rea- 
son, which,  nevertheless,  is  not  essentially  foreign 
to  the  issue,  and  (2)  evidence  may  be  essentially 
foreign  to  the  issue,  and  yet  not  open  to  objection 
as  violating  any  technical  or  formal  rules  affecting 


CONCLUSIONS,   RELATIVE   TO   OBJECTIONS.       73 

its  admissibility.  A  condition  of  this  interpreta- 
tion is  a  concession  of  the  substantial  identity  of 
materiality  and  relevancy.  It  is  further  said: 
"some  of  the  evidence  objected  to  was  so  utterly 
and  clearly  immaterial  as  to  point  out  clearly  its 
incompetency  as  well  as  its  irrelevancy."  This 
would  appear  to  imply  that,  if  the  immateriality 
had  not  been  so  extreme  and  patent,  neither  its 
incompetency  nor  its  irrelevancy  might  have  been 
clearly  pointed  out;  but  whether  this  involves  a 
doctrine,  that  immaterial  evidence  is  ever  relevant, 
is  uncertain.  The  embarrassment  experienced,  in 
endeavoring  to  reach  satisfactory  conclusions  as 
to  the  real  import  of  these  judicial  intimations,  is 
due  the  circumstance  that  the  Opinion  contains  no 
definition  of  either  of  the  words,  incompetent, 
irrelevant  and  immaterial,  and  no  unmistakable 
indications  of  the  respective  contents  of  those  ad- 
jectives. Finally,  in  the  assertion,  that  some  of 
the  evidence,  of  which  it  is  said  that  it  was  im- 
material, irrelevant  and  incompetent,  ''might  have 
been  objected  to  on  all  or  each  of  these  grounds," 
is  contained  a  caution — perhaps  not  imperative— 
to  counsel,  not  to  use  all  three  of  the  words,  in  ob- 
jecting, unless  he  means  them  all. 

It  remains  to  gather  the  results  of  the  foregoing 

conclusions  examination   of  cases  adjudicating  upon 

relative  to    particular   objections,  and    those    of    the 

objections.    preliminary  study,  and  attempt  to  express 

them  in  the  form  of  practical  conclusions  upon  the 


74        CONCLUSIONS,    RELATIVE  TO  OBJECTIONS. 

subject  of  the  mode  of  objecting  to  evidence,  in- 
cluding a  question  as  to  the  propriety  or  advisa- 
bility of  employing  the  formula,  "incompetent, 
irrelevant  and  immaterial." 

CONCLUSIONS  : 

The  following  propositions   are   submitted,   as 
inferable  from  the  weight  of  authority: 

1.  All  possible  objections  to  evidence,  under  our 

system,   are  divisible  into  two  radicallv 

Two  classes          .  . 

of  distinguishable  classes:  viz.:  First,  those 
objections.  wnich  assert  an  inherent  lack,  in  the  pro- 
posed evidence,  of  a  legal  bearing  on  the  issue; 
Second,  those  which  assert  that  the  admission  of 
the  evidence  would  violate  one  or  more  of  the 
numerous  rules  (some  substantial,  and  some  formal) 
which  have  been  adopted,  restricting  admissibility 
on  other  than  such  logical  grounds. 

2.  " Incompetent,"  as  an  objection  to  evidence, 
incompetent  ^s    Droaclly  general,  means  neither  more 

a*  an  nor  less  than  "  inadmissible "  or  "im- 
objection.  pr0per)»  ancj  js  co-extensive  with  both  of 
the  aforementioned  classes  of  objections;  but  con- 
tains no  intimation  as  to  which  class  it  operates 
under,  in  any  given  case,  and  none  as  to  which  of 
the  many  possible  items,  if  any,  under  the  second 
class  is  intended. 


CONCLUSIONS,    RELATIVE    TO    OBJECTIONS.        75 

3.  "Immaterial,  as  an  objection,  is  identical  with 

" irrelevant";  each  belonging  exclusively 

Immaterial  .  * 

or  irrelevant,  to  the  former  of  the  two  aforementioned 
»*&n       classes  of  objections.     Each  term,  when 
employed  in  objecting  to  evidence,  marks 
the  objection  as  specific. 

4.  Where  the  real  contention  is,  that  proposed 
id.        evidence   has   no   bearing   on   the   issue, 

" immaterial "  (alone),  or  " irrelevant"  (alone),  is 
a  good,  and  the  only  proper  univerbal,  objection: 
and  to  use  both  words  would  be  simply  tautologi- 
cal. 

5.  It  is  never  of  any  avail  to  say  " incompetent," 
"incompe-    ^  objecting;  to  do  so  is  merely  equiva- 

tenfis     lent    to    saying:    "I    object."     And    this 
nugatory.     Yiolda,    whether    "  uicompetent "    is    used 

alone,    or    in    connection    with    other    descriptive 

terms,   or  with  explanations. 

6.  Material   (or  relevant)  evidence  is  that,  be- 

tween which  and  the  fact  in  issue,  there 

Essence  of 

materiality    is  a  relation  of  cause  and  effect,  or  of 
or        concomitance  according  to  the  course  of 

relevancy.  ,  .  m  i_  • 

general  experience,  lo  object  to  pro- 
posed evidence,  as  irrelevant  (or  immaterial),  is 
to  assert  that  no  legally  recognizable  relation  of 
cause  and  effect,  or  of  concomitance,  exists  be- 
tween the  evidentiary-  and  the  issue-fact;  or  that 
too  many  intermediary  causes  and  effects  render 
the  evidence  "too  remote";  or  that  the  concomi- 


76        CONCLUSIONS,    RELATIVE  TO    OBJECTIONS. 

tance  is  too  infrequent  to  justify  a  legal  infer- 
ence. 

7.  The  expression  "  incompetent,  irrelevant  and 
"incompe-    immaterial"    should   not   be   uttered,    as 

tent-       stating  an  objection,  both  for  the  reason 

iatA       above  given  (5),  and  because  to  use  that 

immaterial"  expression  is  to  combine  a  general  and  a 

objectionable.   gpecific     objection. 

8.  Whenever  there  is  no  contention,  that  pro- 
posed evidence  has  no  bearing  on  the  issue,  no  one 
word  (unless  "hearsay"  be  an  exception)  is  avail- 
able; but  the  objector  should  particularize  the  ex- 
elusory  rule  which  he  considers  would  be  violated 
by  the  admission:  in  doing  which  there  is  no  com- 
pulsion to  employ  technical  language,  and  no  dan- 
ger in  being  inartistic,  diffuse  or  even  repetitious 
in  elaboration. 

9.  "Incompetent,  irrelevant  and  immaterial"  is 
id.        neither  a  general  nor  a  specific  objection. 

It  is  a  combination  of  the  two  kinds;  and  the  cases 
seemingly  to  the  effect  that  it  is  general,  are  ex- 
plainable as  referring  to  attempts  to  indicate,  by 
this  phrase,  a  ground  of  objection  coming  within 
the  second  of  the  two  classes  suggested  in  proposi- 
tion "1,"  supra;  "incompetent"  properly  covering 
both  classes,  and  the  two  other  attributives  not 
being  within  the  second  class. 

10.  It  is  suggested:   Never  say  "incompetent", 
Multifarious-  for  it  is  useless;  never  say  "irrelevant  and 

ne88-       immaterial",  for  it  is  repetitious. 


CONCLUSIONS,    RELATIVE     TO    OBJECTIONS.      77 

11.  The  objections  most  likely,  when  overruled, 

Most      ^°    ground   a   good   exception,    have    no 

available    stereotyped  or  technical  form.     The  cri- 

objections.    ^eiion  of  availability  is,  that,  in  a  manner 

however  informal  and  diffuse,  they  indicate  clearly 

the  exclusory  rule  sought  to  be  enforced. 


SECTION  III. 
STRIKING  OUT  AND  DISREGARDING  EVIDENCE. 

Under  this  head,  a  reference  will  be  made  to 

General     decisions  which,  at  first  sight,  might  be 

description    considere(^  paradoxical,  holding,  as  they 

of  the  _  .          .  ' 

contents  of  seem  to  do,  that  objectionable  evidence 
this  section,  can  be  eliminated  at  the  instance  of  a 
party  who  offered  no  opposition  to  its  introduction 
when  it  was  offered,  though  a  ground  of  objection 
to  such  introduction  was,  at  that  time,  discernible. 
The  cases  first  to  be  cited  will  be  such  as  appear 
to  be  hi  accord  with  a  familiar,  general  rule. 

In  an  action  brought  by  an  administrator,  to 

Necessity    recover  for  services  rendered  by  the  in- 

for  objecting  testate,  to  defendant,  the  latter  was  ex- 

where  .  ' 

ground  is  ammed  without  any  objection,  on  the  part 
apparent.  of  plaintiff,  as  to  matters  involving  per- 
sonal communications  with  the  decedent.  There- 
after, the  referee  struck  out  this  testimony,  on  the 
ground  that  defendant  was  incompetent  so  to  tes- 
tify, under  a  familiar  statute.  On  defendant's  ap- 
peal, the  court  reversed  this  action  of  the  referee, 
saying: 

"Any  and  every  objection  which  could  be  taken 
78 


MOTION    TO   STRIKE    OUT   EVIDENCE.  79 

to  his  testifying,  or  to  his  testimony,  was  apparent 
on  the  face  of  the  proceedings;  and  yet,  at  a  sub- 
sequent hearing,  the  referee  struck  out  the  testi- 
mony, on  the  alleged  ground  that  the  defendant  was 
incompetent  to  testify.  This  will  not  do.  A  party 
against  whom  a  witness  is  called,  and  examined, 
cannot  lie  by,  and  speculate  on  the  chances,  first 
learn  what  the  witness  testifies,  and  then,  when  he 
finds  the  testimony  unsatisfactory,  object  either 
to  the  competency  of  the  witness  or  to  the  form  or 
substance  of  the  testimony.  It  is  not  the  case, 
which  sometimes  occurs,  where,  on  cross-examina- 
tion, or  in  a  subsequent  stage  of  the  trial,  the  in- 
competency  of  evidence  appears,  though  appar- 
ently competent  when  given,  e.  g.,  oral  proof  of  an 
agreement,  which  on  cross-examination  appears  to 
have  been  in  writing."  l 

Remark. — This  passage  from  an  Opinion  appears 
to  lay  down  the  rule  that,  where  there  is  any  ground 
of  objection  to  evidence  which  is  apparent  when 
the  evidence  is  offered,  a  party  interested  in  ex- 
cluding it  must  object,  then  and  there,  at  his  peril. 

On  the  trial  of  an  action  brought  against  an 
indorser  of  a  promissory  note,  the  only 

Motion  to  .  *  ' 

strikeout    material  issue  presented  was,  whether  no- 
evidence  not  tice   of  presentment  to  the  makers,   for 

completed.  111  i  i 

payment,   had   been   properly  served   on 
the  defendant.     The  statute,  in  force,  made  a  no- 

i  Quin  v.   Lloyd,  41   N.  Y.,  349,  354;  Dec.,  1869. 


80  MOTION   TO   STRIKE    OUT  EVIDENCE. 

tary's  certificate  of  the  presentment,  by  him,  for 
payment,  and  of  protest  for  non-payment,  pre- 
sumptive evidence  of  the  facts  stated  therein, 
unless  defendant  (indorser)  annexed  to  his  plea  an 
affidavit  denying  receipt  of  notice  of  non-payment. 
Defendant  had  served  an  affidavit  of  such  denial  on 
plaintiff's  attorney,  but  had  not  annexed  it  to  his 
Answer  to  the  Complaint.  Plaintiffs  opened  their 
case  by  offering  a  notary's  certificate,  stating  that 
the  note  was  presented  to  the  maker,  for  payment 
(which  was  refused),  and  that  thereupon  he,  the  said 
notary,  did  protest  the  same;  which  certificate  was 
received,  over  defendant's  objection  that  his  An- 
swer was  an  affidavit,  within  the  meaning  of  the 
statute,  and,  if  not,  that  an  affidavit  (which  did 
not  refer  to  the  Answer)  had  been  served,  and 
issue  had  been  joined,  and  noticed  for  trial  by  both 
parties.  The  notary  having  been  afterwards  called, 
as  a  witness  for  plaintiffs,  and  having  testified  that 
the  presentment  was  made,  not  by  him  but  by  his 
clerk,  defendant  moved  "to  strike  out  of  the  evi- 
dence the  said  certificate,  on  the  ground  that  the 
note  in  question  was  not  presented  by  said  notary, 
and  the  certificate  was  therefore  false";  which  mo- 
tion was  denied.  On  defendant's  appeal,  the  court 
sustained  the  denial  of  this  motion,  saying: 

"It  is  claimed  ....  that  the  sworn  An- 
swer of  the  defendant  was  an  affidavit  within  the 
meaning  of  the  statute.  This  claim  is  not  well 
founded.  .  .  .  The  court  did  not,  therefore, 


MOTION  TO    DISREGARD  EVIDENCE.  81 

err  in  receiving  the  certificate  in  evidence  at  the 
time  it  was  offered.  Afterward,  it  appeared  that 
the  notary  did  not  in  person  present  the  note  for 
payment,  but  that  it  was  done  by  his  clerk.  Hence 
the  certificate  was  void,  and  could  with  propriety 
have  been  stricken  out  upon  the  motion  of  the  de- 
fendant. But  where  evidence  has  been  properly 
received,  I  do  not  understand  that  the  party  against 
whom  it  has  been  introduced  has  the  absolute  right 
to  have  it  stricken  out  when  its  effect  has  been 
destroyed  by  other  evidence.  His  proper  course 
is  to  protect  himself  against  the  effect  by  a  proper 
charge  from  the  court.  In  this  case  the  defendant 
should  have  requested  the  court  to  charge  the  jury 
that  the  certificate  was  no  evidence  to  be  consid- 
ered by  them  upon  the  question  of  presentment  of 
the  note,  and  if  this  had  been  refused  he  would 
have  had  a  good  exception.  But  the  certificate  was 
entirely  ignored  in  the  charge  to  the  jury.  And, 
on  the  question  of  presentment,  the  court  put  the 
case  to  the  jury  upon  the  other  evidence.  Hence 
no  error  was  committed  in  refusing  to  strike  out 
the  certificate  upon  the  motion  of  the  defendant."  1 
Remark. — This  decision  is  supposed  to  state  the 
doctrine  that,  where,  on  a  trial  by  jury,  evidence, 
properly  received,  is  afterwards  discovered  to  be 
illegal  (1)  the  court  has  a  discretion  to  grant  or 
refuse  a  motion  to  strike  it  out,  and  (2)  the  party, 
against  whom  it  is  offered,  in  order  to  secure  a 

i  Gawtiy  v.  Doane,  51  N.  Y.,  84,  89;  Sept.,  1872. 
6 


82  NECESSITY   OF   TIMELY   OBJECTION. 

good  exception,  must  move  for  a  direction,  to  the 
jury,  to  disregard  it.  To  the  unskilled  mind  it 
may  be  a  difficult  problem  to  distinguish  between 
the  effect  of  striking  out  evidence,  and  directing 
the  jury  to  disregard  it.  Manifestly,  the  former 
expedient  is  the  only  one  available  in  trials  by 
the  Court.  The  closing  sentences  in  the  quotation 
from  the  Opinion  seem,  however,  to  impress  the 
statement  of  the  general  doctrine  with  the  char- 
acter of  an  obiter  dictum,  as  it  was,  apparently, 
deemed  necessary  or  proper  to  point  out  the  way 
in  which  the  case  was  given  to  the  jury,  as  a 
ground  for  sustaining  the  trial  court's  refusal  to 
strike  out  the  evidence. 

"A  party  may     ....     waive  the  objection 
to  incompetent  evidence  by 

Timely  .       .  . 

objection     omitting  to  make  any  objection.     .     .     . 

generally  Usually  the  objection  must  be  made  when 
the  incompetent  evidence  is  offered.  .  . 
But  if  the  objection  be  not  made  at  the  time,  and 
the  omission  be  shown  to  have  been  from  mistake 
or  inadvertence,  the  trial  court  may  permit  it  to 
be  made  at  any  time  before  the  close  of  the  trial, 
by  motion  to  strike  out  the  incompetent  evidence. 
.  .  .  .  When  the  objection  is  not  made  at  the 
time  the  evidence  is  offered  or  given,  it  is  in  the 
discretion  of  the  trial  judge  to  permit  it  to  be 
made  at  a  later  stage  of  the  trial."  1 

i  Miller  v.  Montgomery,  78  N.  Y.,  282,  286;  Sept.,  1-879. 


STRIKING    OUT,    AND    DISREGARDING    EVIDENCE.   83 

Remark. — This  quotation,  it  will  be  observed, 
makes  no  reference  to  a  motion  for  a  direction,  to 
a  jury,  to  disregard  evidence,  as  distinguished  from 
a  motion  to  strike  out;  and  the  intimation  is  that 
the  discretionary  power  of  the  court,  to  grant  a 
motion  to  strike  out,  is  properly  exercised  only 
where  the  omission  to  interpose  a  timely  objection 
to  the  admission  of  the  evidence  arose  from  mis- 
take or  inadvertence. 

In    an    action    brought    against    defendant    as 

Distinction    indorser    of    a    promissory    note,    dated 

between     April  4th,  1870,  for  $2,000,  made  by  B., 

'"aTd  °'     payable  in  thirty  days,  to  the  order  of 

disregarding  defendant,   purporting  to  have  been  in- 

lce'     dorsed  by  him,  and  alleged  to  have  been 

duly  transferred  to  plaintiff,  the  defence  was,  that 

the  indorsement  was  a  forgery.     On  the  trial,  it 

appeared  that  B.  had  procured  a  prior  note,  dated 

March  28th,  1870,  for  the  same  amount,  made  by 

him,  and  having  thereon  defendant's  name  as  in- 

dorser,  to  be  discounted  at  a  bank  which  had  given 

to  B.  drafts  for  the  amount;  that,  the  note  last 

mentioned  falling  due,  B.  offered  to  the  bank  the 

first  mentioned  note  to  be  discounted  in  renewal 

of    the  due  note,  which  the  bank  declined;  that 

thereupon   B.   made   a  third  note,   for  the  same 

amount,  dated  April  4th,  1870,  payable,  in  fifteen 

days,  to  the  order  of  plaintiff,  who  indorsed  the 

same;  which  last  mentioned   note  the  bank  dis- 


84  STRIKING    OUT,    AND    DISREGARDING    EVIDENCE. 

counted,  B.  turning  over  the  note  in  suit  to  plain- 
tiff as  security.  This  fifteen-day  note  was  paid  by 
plaintiff  at  maturity:  whence  the  action.  Plain- 
tiff was  permitted  to  introduce  the  bank-drafts  in 
evidence,  over  an  objection  by  defendant's  coun- 
sel, to  the  same,  as  "  irrelevant,  incompetent  and 
immaterial,  and  on  the  ground  that  there  is  no 
proof  that  they  went  into  Mr.  King's  hands."  On 
defendant's  appeal,  the  court  sustained  the  ad- 
mission, holding  that  the  evidence  was  competent 
as  part  of  the  res  gestce,  and  also  as  laying  the 
foundation  for  other  evidence  which  might  con- 
nect defendant  with  the  transaction,  and  as  show- 
ing that  the  note  which  formed  the  consideration 
of  the  alleged  indorsement  had  a  valid  inception; 
also  that  the  objection  of  lack  of  "  proof  that  they 
went  into"  (defendant's)  " hands"  went  to  the 
order  of  proof  simply,  which  was  in  the  discretion 
of  the  Court.  After  the  drafts  were  admitted, 
defendant  moved  "to  strike  out  the  drafts  and  all 
evidence  in  regard  thereto,"  which  motion  the 
trial  court  denied.  On  the  appeal,  the  Court  of 
Appeals  held  that  "this  did  not  constitute  a  ground 
for  a  legal  exception;  that,  the  evidence  having 
been  properly  received,  it  could  be  retained  at  the 
discretion  of  the  court,  and  the  remedy  of  the  party 
was  to  ask  the  Court  to  instruct  the  jury  to  dis- 
regard it."  ' 

Remark. — This  case  has  been  given  on  account  of 

i  Marks  v.  King,  64   N.  Y.,  628,  629;  Feb.,  1876. 


STRIKING  OUT,    AND    DISREGARDING    EVIDENCE.    85 

the  pointed  distinction  made  by  it  between  a  motion, 
in  a  jury  cause,  to  strike  out  evidence,  and  a  motion 
for  instructions,  to  the  jury,  to  disregard  it.  Some  of 
the  facts  are  incorrectly  stated  in  the  memorandum 
of  the  case;  1  a  circumstance  which  renders  the 
report  unintelligible.  In  addition  to  this  defect  in 
the  report,  the  head-note  is  incorrect,  in  including 
evidence  admitted  " without  objection/'  as  that 
question  was  not  presented.  The  quotation  of 
that  head-note,  in  the  Opinions  in  subsequent 
cases,  as  a  statement  of  what  was  decided,  has 
tended  to  create  confusion  in  the  law.  The  printed 
head-note  reads  as  follows: 

"  Evidence  admitted  upon  a  trial  by  jury,  either  without 
an  objection  or  properly  under  objection,  which  for  any  rea- 
son should  not  be  considered  by  the  jury,  is  not  necessarily 
to  be  stricken  out  on  motion,  but  may  be  retained  in  the  dis- 
cretion of  the  court;  the  remedy  of  the  party  is  to  ask  for 
instructions  to  the  jury  that  they  disregard  it."2 

In  an  action  on  an  indictment  for  assault,  the 
district  attorney  offered  certain  promis- 

Motion  for  i          i          i         *  • 

instruction,  sorv  notes  and  a  book  of  accounts  in  evi- 
to  jury,  to  dence,  and,  no  objection  being  made,  they 
tvideTIe     were  received  and  read.     The  complain- 
when  the    ant  and  other  witnesses  were  then  called, 
omy  remedy.  an(j    gaye    testimony  tending    to    show 
that   the   notes  were  forgeries,  and  entries  from 
the  book  were  also  read  for  the  same  purpose. 

1  Id.  2  The  italics  are  not  in  the  origi- 

nal. 


86    STRIKING  OUT,   AND   DISREGARDING  EVIDENCE. 

Afterwards  defendant's  counsel  moved  that  the 
court  direct  the  jury  to  disregard  all  the  evidence 
tending  to  establish  the  forgery  of  the  notes; 
which  motion  was  denied.  On  appeal,  the  denial 
of  this  motion  was  affirmed,  the  court  saying: 

"The  notes  and  book  were  offered  and  received 
in  evidence  without  objection  from  the  defendant's 
counsel.  The  evidence  of  the  complainant,  to  the 
effect  that  the  notes  were  forgeries,  .... 
had  been  given  without  objection,  and  the  witness 
had  been  cross-examined  in  regard  thereto.  .  .  . 
After  such  acquiescence  ....  it  is  too  late 
to  ask  that  the  objectionable  matter  be  stricken 
out.  If  any  objection  to  it  could  fairly  be  made, 
it  was  as  apparent  when  the  evidence  was  offered 
as  after  it  was  in,  and  by  not  objecting  to  it  when 
offered,  the  defendant  took  the  risk  of  having  the 
court,  hi  its  discretion,  refuse  to  exclude  it.  In 
Marks  v.  King,  64  N.  Y.,  628,  it  was  held  that 
evidence  admitted  upon  a  trial  by  jury,  either 
without  an  objection,  or  properly  under  objection, 
which  for  any  reason  should  not  be  considered  by 
the  jury,  is  not  necessarily  to  be  stricken  out  on 
motion,  but  may  be  retained  in  the  discretion  of 
the  court.  And  it  was  also  held  that  the  remedy 
of  the  party  is  to  ask  for  instructions  to  the  jury 
to  disregard  it.  This  decision  was  followed  in 
Platner  v.  Platner,  78  N.  Y.,  90,  and  the  question 
now  before  us  is  directly  within  both  cases.  The 
attention  of  the  trial  court  was  not  again  called 


MOTION   TO    STRIKE    OUT  EVIDENCE.  87 

to  the  subject,  nor  was  any  request  made  for  in- 
structions in  regard  to  it."  l 

Remark. — The  tenor  of  this  Opinion  seems  to 
imply  that,  in  a  case  tried  with  a  jury,  a  motion 
for  instructions  to  the  jury  to  disregard  evidence, 
under  the  circumstances  referred  to,  is  the  only 
remedy  of  a  party  who  seeks  to  avoid  the  effect  of 
evidence  which  has  been  admitted. 

In  an  action  on  a  promissory  note,  made  by 
The  same,  defendants,  payable  to  plaintiff  or  bearer, 
one  of  the  defendants,  being  called  as  a  witness  on 
the  part  of  defendants,  was  asked,  on  his  direct 
examination,  to  state  a  conversation  about  the 
note,  had  between  witness  and  plaintiff's  husband, 
since  deceased;  whereupon  the  following  colloquy 
occurred,  as  shown  by  the  Case  on  Appeal: 

Plaintiff's  counsel:  "  Objected  to,  as  hearsay, 
irrelevant  and  improper,  and  on  the  grounds  that 
it  is  not  shown  that  Stephen  Platner"  (plaintiff's 
deceased  husband)  "had  any  authority  to  act  for 
the  plaintiff,  and  also  is  a  violation  of  Section  399." 

The  Court:  "I  will  hear  the  proof,  and  if  the 
necessary  proof  of  his  authority  isn't  made  out,  I 
will  take  care  of  it." 

At  the  close  of  the  evidence  on  this  subject, 
plaintiff  moved  to  strike  out  the  testimony  as  to 
this  conversation;  which  motion  was  denied.  On 

1  Pontius  v.   People,   82    N.  Y.,    are  not  in  the  original.     See  p.  85,. 
339,  346;  Oct.,   1880.     The  italics   supra. 


88  MOTION   TO    DISREGARD    EVIDENCE. 

plaintiff's  appeal,  the  Court  of  Appeals  upheld  the 
trial  court,  in  this  denial,  saying: 

"The  testimony  was  allowed  on  the  notion  that 
knowledge  and  acquiescence  would  be  brought 
home  to  the  plaintiff.  It  may  be  conceded  that 
this  was  not  done.  It  may  be  conceded,  also,  that, 
when  the  motion  to  strike  out  was  made,  the  de- 
fendants had  made  an  end  of  their  evidence  as  to 
the  ....  note.  The  motion  to  strike  out 
was  then  made.  It  was  not  renewed,  nor  the  mat- 
ter again  noticed.  It  should  have  been.  'Evi- 
dence admitted  either  without  objection,  or  prop- 
erly on  objection,  which  for  any  reason  should  not 
be  considered  by  the  jury,  or  affect  the  result,  is  not 
necessarily  stricken  out,  but  may  be  retained  in 
the  discretion  of  the  court,  the  remedy  of  the  party 
being  to  ask  for  instructions  to  the  jury  to  disre- 
gard it.'  There  was  no  request  to  instruct  the  jury 
to  disregard  the  evidence,  and  no  exception  to  the 
charge  of  the  judge  in  respect  to  it,  and  the  weight 
to  be  given  to  it.  See  Opinion  of  ALLEN,  J.,  in 
Marks  v.  King,  64  N.  Y.,  628."  > 

Remark. — Here  it  is  squarely  held  that,  in  a  jury 
cause,  a  motion  to  strike  out  evidence  is  not  avail- 
able as  a  substitute  for  a  motion  for  instructions, 
to  the  jury,  to  disregard  it.  The  quotation,  in 
the  Opinion,  of  the  erroneous  head-note  of  Marks 
v.  King  did  no  harm,  as,  in  both  cases,  there  was 
an  objection  taken  to  the  evidence,  when  offered. 

i  Platner  v.  Plainer,  78  N.  Y.,  90,  101. 


STRIKING  OUT  INCOMPETENT  EVIDENCE.         89 

"It  is  entirely  clear  that  a  party  who  has  sat 
speculative  bv>  during  the  reception  of  incompetent 

silence  evidence  without  properly  objecting  there- 
condemned.  to>  and  hag  tnug  taken  nig  chance  of  ad- 
vantage to  be  derived  therefrom,  has  not,  when 
he  finds  such  evidence  prejudicial,  a  legal  right  to 
require  the  same  to  be  stricken  out.  But  even  if 
the  referee  or  surrogate  could,  in  their  discretion, 
strike  out  any  of  the  testimony,  no  request  was 
made  that  either  should  do  so."  a 

Remark. — This  dictum  clearly  condemns  the  prac- 
tice of  speculative  silence,  where  evidence  is  offered, 
and  refers  exclusively  to  a  motion  to  strike  out ;  this 
being  the  only  possible  motion,  as  there  was  no  jury. 

In  an  action  brought  by  an  Illinois  corporation, 
to    recover    an    unpaid    subscription    to 

Motion  to  .  . 

strikeout  stock,  the  only  substantial  question  was 
uncompleted  as  ^o  plaintiff's  existence  as  a  corpora- 
tion. To  prove  this,  plaintiff  offered  cer- 
tain papers  from  the  office  of  the  Secretary  of 
State,  of  Illinois,  but  there  was  no  proof  that,  by 
the  law  of  Illinois,  these  papers  established  plain- 
tiff's corporate  character.  To  this  evidence  de- 
fendant made  specific  and  elaborate  objections, 
which  were  overruled.  On  defendant's  appeal 
from  a  judgment  which  was  rendered  in  plaintiff's 
favor,  the  Court  refused  to  reverse,  saying: 

"The  documents  from  the  office  of  the  Secretary 

1  Matter  of  Accounting  of  Morgan,  104  N.  Y.,  74,  86;  Jan'y,  1887. 


90  SPECULATIVE  SILENCE. 

of  State  of  Illinois  were  received  in  evidence  against 
the  defendant's  objection  and  exception.  In  order 
to  give  them  proper  effect,  they  should  have  been 
supplemented  by  proof  of  the  law  of  that  State, 
but  they  were  competent  as  part  of  the  chain  of 
proof  on  the  issue.  When  the  plaintiff  failed  to 
follow  them  up  by  proof  of  the  law  which  gave 
them  efficacy,  a  motion  to  strike  out  was  the  de- 
fendant's remedy,  and  no  such  motion  was  made. 
When  evidence  tending  to  prove  a  material  fact  in 
issue  is  received  under  objection,  and  which  re- 
quires proof  of  other  facts  to  make  it  complete, 
which  have  not  been  supplied,  its  presence  in  the 
record  is  no  ground  for  reversal,  in  the  absence  of 
a  motion  subsequently  to  strike  it  out.  The  fail- 
ure of  the  plaintiff,  to  supplement  the  documentary 
evidence  with  proof  of  the  law,  should  have  been 
raised  by  such  a  motion,  as  the  ruling  admitting 
the  papers  was  correct  when  made."  l 

Remark. — Decision,  that  when  certain  links,  only, 
in  the  chain  of  proper  proof  are  admitted,  at  the 
instance  of  a  party,  his  opponent's  only  remedy, 
for  a  failure  to  complete  the  proof,  is  a  motion  to 
strike  out. 

"It  will  not  do  to  take  a  general  objection  which 
is  not  good,  or  speculate  upon  what  a 
witness  may  testify  to,  and  then,  if  not 
agreeable  to  the  one  against  whom  the 

U.  S.  Vinegar  Co.  v.  Schlegel,  143  N.  Y.,  537,  544;  Nov.,  1894. 


STRIKING  OUT,    AND  DISREGARDING   EVIDENCE.   91 

testimony  is  given,  move  to  strike  out  such  testi- 
mony, or,  upon  appeal,  seek  to  destroy  the  effect 
thereof,  by  presenting  specific  objections  which 
would  have  been  good  had  they  been  presented  at 
the  time  the  testimony  was  given."  1 

Remark. — Condemnation  of  speculative  silence, 
or  generality  of  objection,  when  evidence  is  offered. 
No  reference  to  motion  for  instructions,  to  jury,  to 
disregard. 

"In  most  cases,  an  abstract  consideration  of  the 
Motion  to  several  evidential  facts  would  not  suffice 
"ndtor'  ^°  snow  their  relevancy  or  materiality  to 
instruction  the  alleged  ultimate  fact.  Segregated, 
to  disregard.  the  evidential  facts  rarely,  if  ever,  appear 
to  be  relevant  or  material.  Aggregated,  their  rel- 
evancy or  materiality  may  be  irrefragable.  Logi- 
cally, therefore,  no  error  is  to  be  predicated  by  the 
admission  of  competent  evidence,  the  irrelevancy 
or  immateriality  of  which  is  not  apparent  at  the 
time.  If  the  rule  were  otherwise,  it  would  be  diffi- 
cult to  conceive  a  case,  where  error  could  be  avoided, 
except  at  the  risk  of  a  denial  of  redress.  It  was 
incumbent  upon  the  plaintiff's  counsel,  therefore, 
when  the  prejudicial  character  of  the  testimony 
objected  to  was  apparent,  from  the  defendant's 
subsequent  failure  to  connect  the  plaintiff  with  the 
facts  in  evidence  therefrom,  to  ask  the  trial  court 
to  strike  such  testimony  out,  and 2  to  instruct  the 

1  Jewel.  Mer.  Agency  v.  Jewel  Pub.        2  Italics,  not  in  the  original. 
Co.,  84  Hun,  12,  19;  Jan'y,  1895. 


92  AVOIDING   IRRELEVANT   EVIDENCE. 

jury  to  disregard  it.  An  exception  to  an  adverse 
ruling  upon  such  a  request,  and  not  otherwise, 
would  have  enabled  us  to  consider  the  effect  of  the 
admission  of  such  testimony";  citing  U.  S.  Vinegar 
Co.  v.  Schlegel,  supra.1 

Remark. — Apparent  intimation  that,  under  the 
circumstances  referred  to,  the  party,  seeking  to 
avoid  the  effect  of  evidence  admitted,  should  move, 
both  to  strike  out,  and  for  an  instruction,  to  the 
jury,  to  disregard. 

Thus  far,  the  cases  cited  in  this  section  have  not 
contained  any  explicit  statement  of  doctrine,  that 
a  party  can  safely  sit  silent  when  evidence  is  of- 
fered by  his  adversary,  and  afterwards,  by  suitable 
motion,  avoid  its  effect,  as  a  matter  of  right.  It 
remains  to  ascertain  whether  such  a  doctrine  is 
contained  in  any  cases,  and  if  it  be,  how  those  cases 
are  to  be  reconciled  with  the  principles  hereto- 
fore enunciated. 

In  an  action  brought  by  a  passenger,  to  recover 
irrelevant    damages   for   having  been   ejected   from 


evidence 


defendant's   train,    it    appeared,    on   the 
without     trial,  that  plaintiff  purchased,  at  Buffalo, 
objection,    a  ticket  good,  by  its  terms,  for  a  con- 
tinuous passage  from  that  city  to  Albany,  and  then 
for  a  like  passage,  from  the  latter  place  to  New 
York;   that,  on  his  journey  eastward,  he  left  the 

i  Pohalski  v.  Ertheiler,  18  Misc.,  33,  35. 


AVOIDING   IRRELEVANT   EVIDENCE.  93 

train  at  Utica,  where,  on  his  leaving  the  sleeping- 
car,  its  conductor,  as  plaintiff  testified,  tore  off  the 
N.  Y.  Central  coupon,  and  returned  to  him  the 
stub  and  the  H.  R.  R.  coupon,  though  that  con- 
ductor testified  that  he  found  the  former  coupon 
in  plaintiff's  berth,  after  the  train  had  left  Utica; 
that,  next  day,  plaintiff  took  a  train  eastward,  and, 
being  unable  to  produce  the  Central  coupon,  was 
ejected  at  St.  Johnsville,  afterwards,  however,  pay- 
ing the  fare  to  Albany,  under  protest,  and,  return- 
big  to  the  train,  before  leaving  St.  Johnsville,  pro- 
ceeded to  Albany;  that  there  plaintiff  met  the 
conductor  of  the  sleeping-car,  who  stated  that  he 
had  found  the  Central  coupon,  whereupon  the  con- 
ductor of  the  Utica  train  refunded  the  fare  from 
Utica  to  Albany,  after  doing  which,  he  addressed 
plaintiff  in  slanderous  language.  These  remarks  of 
the  conductor  were  given  in  evidence  by  plaintiff, 
without  objection  from  defendant;  but  defendant's 
counsel  subsequently  requested  the  court  to  charge 
the  jury  that  (if  they  believed  plaintiff's  testimony 
hi  regard  thereto)  the  company  was  not  liable 
therefor.  This  request  was  refused.  On  defen- 
dant's appeal,  the  Court  of  Appeals  sustained  de- 
fendant's exception  to  this  refusal,  saying: 

"The  fact  that  the  statement  referred  to  in  the 
request  was  made  without  objection  by  the  de- 
fendant did  not  render  the  refusal  proper.  It  is 
said  with  plausibility  by  MULLEN,  J.,"  (below) 
"that  the  evidence  'was  conceded  by  both  parties 


94  AVOIDING   IRRELEVANT   EVIDENCE. 

to  be  competent,  as  evidenced  by  the  one  by  offer- 
ing, by  the  other  by  not  objecting  to  it.  To  in- 
struct a  jury  that  such  evidence  is  not  to  be  taken 
into  consideration  is  to  exclude  it  from  the  case. 
This  the  court  had  no  right  to  do/  The  remark 
is  specious  and  unsound.  It  does  not  follow  that 
the  omission  to  object  to  testimony  is  a  concession 
that  it  is  competent.  Counsel  may  deem  certain 
evidence  offered  entirely  irrelevant  and  imma- 
terial, and  therefore  harmless,  and  for  that  reason 
raise  no  objection  to  its  introduction,  and  thus 
avoid  an  exception,  assuming,  as  the  learned  judge, 
after  making  the  remark  above  quoted,  immedi- 
ately added,  that  frbeing  in,  it  was  the  duty  of  the 
court  and  jury  to  give  it  whatever  effect  it  ought 
to  have  in  the  case.'  On  the  application  of  that 
principle,  to  the  evidence  referred  to,  the  learned 
judge  was  asked  to  instruct  the  jury  that  it  ought 
to  have  no  effect  whatever.  This  it  was  his  duty 
to  do,  if  the  testimony  was  irrelevant,  and  such  as 
could  legally  have  no  influence  whatever  on  their 
verdict."  The  Opinion  then  refutes  the  proposi- 
tion that  the  evidence  was  competent  as  part  of 
the  res  gestce;  the  remarks  made  by  the  conductor, 
at  Albany,  having  been  made  several  hours  after 
the  ejection  at  St.  Johnsville,  and  being  said  not  to 
be  within  the  scope  of  the  conductor's  authority.1 

Remark. — This  decision  holds   clearly  that,  in  a 
jury  cause,  where  evidence   manifestly  irrelevant, 

i  Hamilton  v.  N.  Y.  C.  R.  R.Co.,  51  N.  Y.,  100,  106;  Sept.,  1872. 


HAMILTON    CASE,    AS    A    PRECEDENT.  95 

i.  e.,  such  as  " ought  to  have  no  effect  whatever" 
on  the  case,  is  offered,  the  opposing  party  can 
safely  sit  silent,  and  afterwards  move,  as  a  matter 
of  right,  for  a  direction  to  the  jury  to  disregard  it. 
The  Hamilton  case  has  been  cited,  followed  and, 
apparently,  extended  beyond  its  original  scope,  in 
later  decisions. 

In  an  action  brought  by  a  passenger  to  recover 
for  injuries  suffered  by  reason  of  the  sud- 

Hamilton  ... 

case  den  starting  of  an  omnibus,  operated  by 
followed,  defendants,  while  she  was  alighting  there- 
from, plaintiff,  being  asked,  on  her  direct  examina- 
tion, to  state  if  she  recollected  whether  the  driver 
made  any  remark  to  her  at  the  time  when  she  en- 
tered the  vehicle,  responded,  without  any  objec- 
tion by  defendants,  not  only  that  she  did  so  recol- 
lect, but  that  he  swore  at  her,  for  not  hurrying,  and 
started  before  she  had  fully  entered,  causing  her 
to  fall  to  the  floor.  Afterwards,  plaintiff's  coun- 
sel, evidently  apprehending  that  the  anticipated 
verdict  might  be  imperilled  by  this  (irrelevant) 
testimony,  moved  to  strike  it  out,  and  for  an  in- 
struction, to  the  jury,  to  disregard  it;  which  motion 
was  granted,  against  defendants'  objection  and 
exception.  On  defendants'  appeal  from  a  judg- 
ment in  plaintiff's  favor,  the  General  Term  of  the 
N.  Y.  Superior  Court  affirmed  the  judgment,  re- 
fusing to  sustain  defendants'  exception,  and  say- 
ing: 


96  HAMILTON    CASE,    AS   A   PRECEDENT. 

"Defendants'  counsel  not  only  permitted  this 
irrelevant  matter  to  be  given  in  evidence,  when  it 
would  have  been  quite  easy  to  stop  the  witness  in 
her  narration  of  it,  but  to  remain  in  the  case.  It 
was,  therefore,  fully  competent  for  the  court,  at  a 
later  stage,  on  motion  of  plaintiff's  counsel,  and 
against  the  objection  and  exception  of  defendants' 
counsel,  who  claimed  that  the  moral  effect  of  the 
testimony  could  not  be  removed  in  that  way,  to 
strike  out  the  said  testimony,  and  to  instruct  the 
jury  to  disregard  it.  Indeed,  the  instruction  to 
disregard  it  was  the  only  relief  to  which  the  defen- 
dants would  have  been  entitled,  had  they  seen  fit 
to  make  the  motion";  citing  Gawtry  v.  Doane, 
supra,  and  Hamilton  v.  N.  Y.  C.  R.  R.  Co.,  supra.1 

Remark. — This  case  is  singular,  in  the  circum- 
stance that  defendants  tried  to  secure  a  reversal  of 
the  action  of  the  trial  court  in  granting  plaintiff's 
motion  to  strike  out,  and  direct  a  disregard  of, 
irrelevant  evidence  introduced  by  plaintiff.  The 
decision  is  cited  here,  as  recognizing  the  authority 
of  the  Hamilton  case. 

In  an  action  brought  to  recover  the  amount  of 
id.  two  policies  of  insurance  issued  by  de- 
fendant on  the  life  of  plaintiff's  husband,  evidence 
was  given  by  plaintiff,  without  objection,  of  decla- 
rations made  by  defendant's  general  agent,  tending 
to  show  the  existence  of  an  agreement  whereby  de- 

» Roberts  v.  Johnson,  37  N.  Y.  Superior,  157,  160;  Feb.,  1874. 


HAMILTON   CASE,    AS    A   PRECEDENT.  97 

fendant  waived  a  lapse  of  the  policies  caused  by 
failure  to  pay  premiums.  After  all  the  evidence 
was  taken,  defendant  moved  for  a  non-suit  on  the 
ground,  among  others,  that  it  was  not  proved  that 
the  conditions  of  the  policy,  as  to  payment  of 
premiums,  had  been  waived;  which  motion  was 
denied.  On  defendant's  appeal,  the  General  Term 
said: 

"  Those  declarations  were  not  competent  evidence 
of  the  existence  of  an  agreement,  made  six  weeks 
before  the  time  when  they  were  made,  against  the 
defendant,  the  principal  of  the  agent  making  them. 
And  the  omission  to  object  to  them  when  they 
were  offered  did  not  deprive  the  defendant  of  the 
right  to  insist  upon  their  incompetency  at  the 
close  of  the  evidence,  or  any  other  time  during  the 
progress  of  the  trial.  This  was  substantially  held 
in  the  case  of  Hamilton  v.  N.  Y.  C.  R.  R.  Co.,  51 
N.  Y.,  100.  But  the  objection  actually  taken  did 
not  present  this  point  for  the  decision  of  the  court. 
It  simply  presented  the  objection  that  the  agent 
was  not  authorized  to  waive  or  extend  the  time 
of  payment  of  the  premium.  Whether  the  proof, 
given  to  show  that  an  agreement  had  been  made, 
for  the  extension,  was  competent  proof  for  that 
purpose,  was  not  mentioned  nor  suggested."  * 

Remark. — This  Opinion  contains  an  obiter  dictum; 
recognizing  the  doctrine  of  the  Hamilton  case— 
the  possibility  of  avoiding  the  effect  of  evidence, 

i  Dean  v.  ^Etna  Life  Ins.  Co.,  2  Hun,  358,  368. 


98  HAMILTON   CASE,   AS    A    PRECEDENT. 

after  omitting  to  object  to  its  introduction — ex- 
tending it  from  irrelevant  evidence,  to  any  which  is 
"in  its  essential  nature  incompetent."  Irrelevant 
evidence  is,  it  is  submitted,  a  class  of  evidence, 
in  its  essential  nature  incompetent  (inadmissible). 

In  a  special  proceeding  instituted  to  procure  the 
M.  revocation  of  probate  of  a  will,  a  witness 
for  contestant  testified  to  declarations  of  decedent 
tending  to  impeach  the  will.  The  Surrogate  re- 
fused to  revoke  probate,  saying,  in  his  Opinion: 
"Very  little  of  the  testimony  given  by  this  wit- 
ness was  competent.  The  court  would  have  been 
bound,  under  the  rules  of  evidence,  to  exclude  the 
bulk  of  it,  if  objection  had  been  made,  as  it  ought 
to  have  been  made,  to  its  admission.  For  in  view 
of  the  fact  that  the  mental  capacity  of  the  decedent, 
though  technically  put  in  issue  by  the  pleadings, 
was  not  practically  questioned  at  the  trial,  and  that, 
aside  from  her  declarations,  there  was  really  no 
proof  of  the  fact  of  undue  influence,  those  dec- 
larations, tending  to  impeach  the  integrity  of  her 
will,  and  to  ascribe  its  contents  to  the  improper 
interference  of  her  children,  were  not  admissible 
in  evidence  for  any  purpose.  They  were  proved, 
however,  without  objection,  and  will  accordingly  be 
considered  by  the  court,  although  they  might,  per- 
haps, be  safely  disregarded  in  view  of  the  decision 
in  Hamilton  v.  N.  Y.  C.  R.  R.  Co.,  51  N.  Y.,  106."  ' 

i  Shaw  v.  Shaw,  1  Dem.,  21,  24;  June,  1882. 


HAMILTON    CASE,    AS    A    PRECEDENT.  99 

Remark. — This  case  contains  a  guarded  dictum, 
to  the  effect  that  the  Hamilton  case  may  be  ex- 
tended to  a  case  of  evidence  essentially  incompe- 
tent, though  not  distinctly  irrelevant. 

In  an  action  brought  to  recover  damages  for 
injuries  sustained  by  plaintiff,  through  the  fall  of 
an  elevator,  by  reason  of  the  breaking  of  a  chain, 
in  a  building  owned  by  defendants,  on  an  allegation 
of  their  negligence,  in  which  the  court  directed  a 
verdict  for  defendants,  plaintiff  proved,  without 
objection,  that  B.,  the  head-engineer,  who  had 
charge  of  ^all  the  machinery  and  elevators  in  the 
building,  addressing  D.,  who  was  manager  of  the 
building,  but  had  nothing  to  do  with  the  construc- 
tion or  management  of  the  elevator,  had  said: 
"Now,  D.,  I  knew  that  chain  from  the  first  day 
was  not  strong  enough  for  the  car;"  also  that  B. 
had  said:  "that  is  the  chain  I  had  been  repeatedly 
at  Mr.  D.,  about  being  too  light  for  its  work."  On 
plaintiff's  appeal,  the  General  Term  of  the  N.  Y. 
Superior  Court  reversed  the  judgment  rendered  in 
favor  of  the  defendants,  on  the  ground  that  plain- 
tiff was  entitled  to  go  to  the  jury  on  certain  ques- 
tions mentioned.  But  one  of  the  prevailing  Opin- 
ions contains  the  following  expressions: 

"Although  this  testimony  was  received  without 
objection,  yet  I  am  of  the  opinion  that  it  was  not 
evidence  of  the  fact  that  B.  had  given  the  defen- 
dants or  their  superintendent  notice  of  the  fact  that 


100          HAMILTON    CASE,    AS  A   PRECEDENT. 

the  chain  was  too  light  for  its  work.  Neither  was 
it  admissible  as  part  of  the  res  gestce.  And  the 
omission  to  object  to  this  testimony  was  not  a  con- 
cession that  it  was  competent.  'Hamilton  v.  N.  Y. 

C.  R.  R.  Co.,  51  N.  Y.,  100.     .     .     .     Notice  to 

D.  was  not  notice  to  defendants."  a 

Remark. — Follows,  in  an  obiter  dictum,  the  Ham- 
ilton case. 

In  an  action  brought  to  recover  a  balance  al- 
M.  leged  to  be  due  upon  a  competitive  con- 
tract, for  goods  to  be  sold  and  delivered,  in  which 
the  defense  was  that  the  contract  was  awarded  to 
plaintiff,  not  the  lowest  bidder,  by  collusion  be- 
tween him  and  officers  of  defendant,  after  defen- 
dant had  given  evidence  sufficient  to  justify  a  ver- 
dict in  its  favor,  plaintiff  put  in  evidence,  without 
objection,  a  certificate  of  audit  made  by  the  clerk 
of  the  board  of  apportionment,  and  an  award  signed 
by  two  members  of  the  board,  though  the  law  al- 
lowed an  award  to  be  made  only  by  the  concurrent 
vote  of  all  the  members  of  the  board.  The  trial 
court  charged  the  jury  to  give  no  weight  or  impor- 
tance to  the  award  or  audit ;  to  which  charge  plain- 
tiff excepted.  On  plaintiff's  appeal  from  a  judg- 
ment rendered  in  favor  of  defendant,  the  General 
Term  of  the  Supreme  Court  sustained  the  charge, 
holding  that  the  award  was  illegal,  and  the  certifi- 

i  Delaney  v.  Hilton,  50  N.  Y.  Superior,  341,  344;  June,  1883. 


HAMILTON   CASE,  AS  A    PRECEDENT.  101 

cate  "was  not  evidence  in  the  case,"  and,  further, 
saying: 

"The  court  was  right  in  the  charge  which  was 
given  to  the  jury,  directing  them  to  give  no  weight 
or  importance  to  the  award  or  audit,  which  were 
read  in  evidence.  For  where  improper  evidence  is 
received  during  the  progress  of  a  trial,  even  with- 
out objection  as  this  was,  it  is  still  the  duty  of  the 
court,  in  the  submission  of  the  case  to  the  jury,  to 
direct  them  to  disregard  it.  Hamilton  v.  N.  Y.  C. 
R.  R.  Co.,  51  N.  Y.,  100."  l 

Remark.  —  This  decision  extends  the  benefit  of 
the  Hamilton-case  doctrine  to  evidence,  which  was 
not  objectionable  on  the  specific  ground  of  irrele- 
vancy, and  to  a  party  who  sought  no  relief  from 
its  effect. 

In  an  action  brought  by  a  passenger  against  a 
carrier,  a  street  railroad  company,  to  re- 

Hamilton  ,  .     .        . 

case       cover  damages  for  personal  injuries  result- 


mg  from  defendant's  negligence  in  start- 
ing its  car  before  plaintiff  had  reached  a  seat, 
thereby,  as  alleged,  permanently  maiming  her,  the 
Complaint  set  forth  that  the  defendant  "wrong- 
fully and  negligently  started  said  car;"  and  the 
evidence,  on  the  part  of  plaintiff,  which  was  ad- 
mitted without  objection,  was  sufficient  to  warrant 
the  jury  in  finding  that,  while  plaintiff  was  in  the 
act  of  gaining  a  place  of  safety  in  the  car,  the  latter 

i  Neilson  v.  Mayor,  etc.,  of  N.  Y.,  1  Silv.,  Supreme  Ct.,  471,  484. 


102  HAMILTON    CASE,    AS    A   PRECEDENT. 

was  "suddenly  started  with  a  violent  jerk."  De- 
fendant requested  the  court  to  charge  the  jury, 
that  "so  far  as  the  consideration  of  negligence 
.  .  .  .  is  concerned,  the  question  of  the  violent 
jerk  is  of  no  importance."  This  request  was  re- 
fused; and,  on  defendant's  appeal,  the  refusal  was 
sustained,  the  court  saying: 

"The  theory  of  the  defendant  is,  that  this  con- 
stituted error  because  the  Complaint  did  not  allege, 
in  words,  that  the  defendant  started  its  car  with  a 
violent  jerk.  .  .  .  The  pleadings  fairly  ap- 
prised the  defendant  of  the  nature  of  the  plaintiff's 
claim  for  damages;  ....  and  evidence  that 
the  car  was  started  with  a  jerk,  while  yet  the  plain- 
tiff was  in  a  position  where  she  was  exposed  to  the 
danger  of  being  thrown  down  was  material  to  the 
issue.  The  rule  is  supported  by  authority,  that  a 
party  who  has  sat  by,  during  the  reception  of  in- 
competent evidence  without  properly  objecting 
thereto,  and  has  thus  taken  his  chance  of  advan- 
tage to  be  derived  therefrom,  has  not,  when  he  finds 
such  evidence  prejudicial,  a  legal  right  to  require 
the  same  to  be  stricken  out  (Matter  of  Morgan, 
104  N.  Y.,  74,  86) ;  nor  has  he  a  right  to  be  relieved 
from  its  effect  where  such  evidence  is  material 
(2  Rums.  Prac.,  2d  ed.,  351,  352,  citing  Quin  v. 
Lloyd,  41  N.  Y.,  349).  The  defendant  made  no 
effort  to  exclude  any  of  the  evidence  as  to  the 
violent  jerk  of  the  car;  on  cross-examination,  the 
evidence  was  rather  emphasized  in  response  to  de- 


HAMILTON    CASE   EXPOUNDED.  103 

fendant's  questions,  and  we  are  clearly  of  opinion 
that  the  court  did  not  err  in  refusing  to  charge  de- 
fendant's request.  Of  course,  where  the  evidence 
admitted  is  irrelevant,  the  party  calling  attention 
to  it  is  entitled  to  an  instruction  that  it  should  be 
disregarded  by  the  jury  (Hamilton  v.  N.  Y.  C. 
R.  R.  Co.,  51  N.  Y.,  100,  107).  But  the  rule  is  dif- 
ferent where  the  evidence  is  material  to  the  issue, 
though  it  might  be  incompetent  if  objected  to,  as 
we  have  already  pointed  out."  1 

Remark. — This  very  recent  decision  contains  a 
most  valuable  exposition  of  the  Hamilton  case,  and 
shows  how  far,  and  in  what  manner,  the  latter  is 
to  be  reconciled  with  the  general  duty  to  object  to 
obJBctionable  evidence  when  it  is  offered.  It  is 
supposed  that  the  true  rule,  at  least  in  the  State  of 
New  York,  as  indicated  by  this  Opinion,  is  as  fol- 
lows: In  general,  the  only  available  time  to  start 
opposition  to  evidence  is  when  it  is  offered ;  there  is 
an  exception  as  to  evidence  purely  irrelevant  (i.  e., 
immaterial),  and  not  otherwise  without  the  pale. 
As  to  such  evidence,  which,  by  definition,  ought  to 
have  no  effect  whatever  on  the  case,  it  appears  that, 
on  a  jury  trial,  counsel  can  safely,  if  he  choose  so  to 
do,  insist  on  maintaining  a  strict  logical  position, 
i.  e.,  allow  it  to  be  introduced  without  opposition, 
and  afterwards  secure,  as  matter  of  right,  an  in- 
struction, to  the  jury,  to  give  it  its  logical  effect — 
no  effect  whatever;  though  why  he  should  omit  to 

»  Plum  v.  Met.  St.  R.Co.,  91  App.  Div.,  420,  422. 


104    CONCLUSIONS   AS  TO    AVOIDING   EVIDENCE. 

exercise  the  power  to  object  to  irrelevancy  at  the 
outset,  may  not  be  considered  plain.  The  tendency, 
exhibited  by  some  of  the  cases,  to  extend  this  doc- 
trine to  improper  evidence,  generally,  is  believed 
not  to  be  warranted  by  the  Hamilton  precedent, 
and  to  be  unintelligible,  as  tending  to  subvert  the 
entire  body  of  practice  rules,  relative  to  taking  ob- 
jections to  the  introduction  of  evidence.  The  re- 
sult of  the  foregoing  examination,  therefore,  is  as 
follows : 

CONCLUSIONS  : 

In  non-jury  causes: 

The  only  possible  method  of  seeking  to  avoid 
the  effect  of  evidence,  once  admitted,  is  a  motion 
to  strike  out.  The  granting  or  denial  of  such  a 
motion  being  in  the  discretion  of  the  trial  court, 
the  safer,  as,  evidently,  also,  the  fairer,  course  is 
to  object  to  the  admission. 

In  jury  causes: 

It  is  difficult  rationally  to  distinguish  the  plight 
of  evidence,  which  the  jury  are  instructed  to  dis- 
regard, from  that  of  evidence  which  is  stricken  out. 
One  feels  an  almost  irresistible  impulse  to  accord 
assent  to  the  assertion  of  MULLEN,  J.  (quoted  in 
51  N.  Y.,  106),  that  "to  instruct  a  jury,  that" 
(such)  "evidence  is  not  to  be  taken  into  considera- 
tion, is  to  exclude  it  from  the  case." 

But  the  line  of  demarcation  between  a  motion 
to  strike  out,  and  one  for  an  instruction  to  disre- 


CONCLUSIONS    AS   TO    AVOIDING    EVIDENCE.    105 

gard,  is  finally  established ;  and  all  that  can  be  said 
is,  that  the  distinction  exhibits  one  of  those  pro- 
found depths  of  the  law,  at  which  the  lay-mind 
gazes  with  surprise,  or  aghast,  while  the  profes- 
sional succumbs  to  the  fiat  of  authority.  No  ar- 
gument, in  favor  of  making  both  motions,  in  any 
one  case,  is  apparent.  It  is  submitted,  as  the  true 
rule,  that  a  legal  right  to  the  granting  of  a  motion 
for  instructions,  to  a  jury,  to  disregard  evidence 
which  has  been  admitted  without  objection,  exists 
only  in  the  case  of  irrelevant,  which  is  the  same 
as  immaterial,  evidence. 


SECTION  IV. 

MOTIONS  TO  DIRECT,  AND   TO  SET  ASIDE,    VERDICTS. 

In  Linkhauf  v.  Lombard,1  it  was  said: 
"The  rule  should  be  regarded  as  settled,  under 
all  the  authorities,  as  well  by  the  decisions  of  the 
Courts  of  this  State  as  by  those  of  England,  that, 
where  there  is  no  evidence  upon  an  issue  before  the 
jury,  or  the  weight  of  the  evidence  is  so  decidedly 
preponderating  in  favor  of  one  side,  that  a  verdict 
contrary  to  it  would  be  set  aside,  it  is  the  duty  of 
the  trial  judge  to  nonsuit,  or  to  direct  a  verdict, 
as  the  case  may  require." 

The  decision  in  this  case  reversed  a  judgment 
for  plaintiff  entered  on  a  verdict,  for  error  of  the 
trial  court  in  refusing  to  dismiss  the  complaint,  or, 
subsequently,  to  direct  a  verdict  for  the  defen- 
dants. 

In  Hemmens  v.  Nelson,2  it  was  said: 

"The  most  that  can  possibly  be  said  is,  that 

there  was  a  scintilla  of  evidence  on  the  question  of 

malice  which,  under  the  doctrine  of  some  older 

cases,  was  sufficient  to  carry  the  question  to  the 

»137  N.  Y.,  417,  426;  1893.  2  133  jj.  Y.,  517,  529;    1893. 

106 


MOTION    TO    DIRECT,    ETC.,    VERDICT.  107 

jury.  But  this  court  is  now  firmly  committed  to 
the  more  modern  and  reasonable  rule,  that,  where 
there  is  no  evidence  upon  an  issue  before  the  jury 
or  the  weight  of  evidence  is  so  decidedly  prepon- 
derating in  favor  of  one  side,  that  a  verdict  con- 
trary to  it  would  be  set  aside,  it  is  the  duty  of  the 
trial  judge  to  nonsuit,  or  to  direct  a  verdict,  as  the 
case  may  require." 

The  decision  in  this  case  affirmed  a  judgment  for 
defendant  entered  upon  a  verdict  directed  by  the 
court. 

In  Cohn  v.  Mayer  Brewing  Co.,1  it  was  said: 
"  Where  the  weight  of  evidence  is  so  decidedly 
preponderating  in  favor  of  one  party  that  a  verdict 
contrary  to  that  preponderance  would  be  set  aside 
on  motion,  a  trial  judge  should  nonsuit,  or  direct  a 
verdict,  as  the  case  may  require." 

The  decision  in  this  case  affirmed  a  judgment 
entered  upon  a  dismissal  of  the  complaint  by  di- 
rection of  the  trial  court,  the  Opinion  citing  the 
Linkhauf  and  Hemmens  decisions  (supra),  and 
others. 

In  McDonald  v.  Met.  St.  R'y  Co.,2  it  was  said: 
"It  is  undoubtedly  true  that,  where  there  is  a 
conflict  of  evidence,  the  court  may  properly  sub- 
mit the  case  to  the  jury  if  it  sees  fit,  even  though 
the  testimony  may  decidedly  preponderate  on  one 

138  App.  Div.,  5,  6;  1899.  2  46   App.    Div.,   143,    146,  147; 

1899. 


108  MOTION    TO    DIRECT,    ETC.,    VERDICT. 

side  or  the  other,  so  that  a  verdict  would  be  set 
aside  as  against  the  weight  of  the  evidence,  but  it 
is  equally  true  that  the  court  will  not  be  required 
to  take  such  action  although  it  is  advisable  to  send 
the  case  to  the  jury,  except  where  there  is  a  great 
preponderance  of  testimony.  But  if  the  court 
does  not  see  fit  to  take  that  course,  and  has  itself 
disposed  of  the  case,  the  question  then  to  be  de- 
termined is,  whether,  upon  the  evidence,  a  verdict 
in  favor  of  the  person  against  whom  the  judgment 
has  been  rendered  could  be  sustained.  If  not,  the 
action  of  the  court  will  be  approved.  This  has  been 
the  undoubted  rule  in  this  State  for  many  years. 
.  .  .  .  It  is  said,  in  the  case  of  Linkhauf  v. 
Lombard,  that  the  rule  was  to  be  regarded  as 
settled,  as  well  by  the  decisions  of  the  courts  of 
this  State  as  by  the  courts  of  England,  that,  where 
there  is  no  evidence  upon  any  issue  before  the  jury, 
or  the  weight  of  evidence  is  so  preponderating  in 
favor  of  one  side  that  a  verdict  contrary  to  it  would 
be  set  aside,  it  is  the  duty  of  the  trial  justice  to 
direct  a  nonsuit.  What  was  said  in  that  case  was 
accepted  in  a  subsequent  decision  of  the  court,1 
where  the  Opinion  was  delivered  by  the  only  jus- 
tice who  dissented  in  the  case  of  Linkhauf  v. 
Lombard.  In  the  absence  of  some  decision  of  that 
Court,  we  do  not  think  we  should  be  at  liberty  to 
depart  from  the  rule  there  laid  down." 

The  decision  in  this  case  affirmed  a  judgment 

1  Hemmens  v.  Nelson. 


MOTION  TO    DIRECT,    ETC.,    VERDICT.  109 

for  defendant  entered  upon  a  verdict  rendered  by 
direction  of  the  trial  court. 

In  Fealey  v.  Bull,1  the  appeal  was  from  a  judg- 
ment affirming  one  in  favor  of  plaintiff,  entered  on 
a  verdict  rendered  on  the  third  trial  of  the  action. 
The  Court  of  Appeals  affirmed  the  judgment  ap- 
pealed from,  the  point  of  the  decision,  as  stated  in 
the  head-note,  being  that,  where  the  Appellate  Di- 
vision has  reversed  a  judgment  based  upon  a  ver- 
dict held  to  be  against  the  weight  of  evidence,  and 
grants  a  new  trial,  and,  on  a  subsequent  trial,  the 
evidence  is  substantially  the  same,  the  refusal  of 
the  trial  court,  to  non-suit,  presents  no  error  re- 
viewable  by  the  highest  Court,  where  the  evidence 
is  sufficient  to  support  a  verdict  either  way.  In 
its  Opinion,  the  Court  referred  to  the  decisions  of 
the  Appellate  Division  in  the  Cohn  and  McDonald 
cases  (supra},  and  explained  the  Linkhauf  and 
Hemmens  cases  (supra),  as  follows: 

"In  Linkhauf  v.  Lombard,  it  is  said  that  'the 
rule  should  be  regarded  as  settled,  under  all  the 
authorities,  as  well  by  the  decisions  of  the  courts  of 
this  State  as  by  those  of  England,  that,  where  there 
is  no  evidence  upon  an  issue  before  the  jury,  or  the 
weight  of  the  evidence  is  so  decidedly  preponder- 
ating in  favor  of  one  side,  that  a  verdict  contrary 
to  it  would  be  set  aside,  it  is  the  duty  of  the  trial 
judge  to  nonsuit,  or  to  direct  a  verdict,  as  the  case 

1 163  N.  Y.,  397;  1900. 


110  MOTION  TO   DIRECT,    ETC.,    VERDICT. 

may  require.'  A  statement  substantially  similar 
is  to  be  found  in  Hemmens  v.  Nelson.  Taken  by 
themselves,  these  declarations  apparently  afford 
some  justification  for  the  rule  asserted  in  the  cases 
cited  from  the  Appellate  Division.  But  to  excerpt 
a  single  sentence  from  a  judicial  opinion  and  con- 
strue and  interpret  it  apart  from  the  context  of  the 
Opinion  in  which  it  is  found,  and  without  regard 
to  the  subject-matter  under  discussion,  is  not  only 
unreasonable,  but  at  times  leads  to  erroneous  con- 
clusions." And  the  Opinion  then  proceeds  to  con- 
fine the  effect  of  the  Linkhauf  and  Hemmens  de- 
cisions to  the  facts  presented  to  the  court,  in  those 
cases,  respectively,  and  concludes  that,  "where  the 
right  to  a  verdict  depends  on  the  credibility  to  be 
accorded  witnesses,  and  the  testimony  is  not  in- 
credible nor  insufficient  as  a  matter  of  law,  the 
question  of  fact  is  for  the  jury  to  determine." 

The  McDonald  case  (supra)  reached  the  highest 
Court  in  1901,  and  its  Opinion  therein  is  next  re- 
ferred to. 

In  McDonald  v.  Met.  St.  R'y  Co.,1  the  appeal 
from  the  judgment  of  the  Appellate  Division  (su- 
pra) was  allowed  "upon  the  ground  of  an  existing 
conflict  in  the  decisions  of  different  departments 
of  the  Appellate  Division,  as  to  when  a  verdict 
may  be  directed  where  there  is  an  issue  of  fact, 
and  because  in  this  case  an  erroneous  principle 

1 167  N.  Y.,  66  (1901). 


MOTION   TO   DIRECT,    ETC.,    VERDICT.  Ill 

was  asserted,  which,  if  allowed  to  pass  unconnected, 
would  be  likely  to  introduce  confusion  into  the 
body  of  the  law  (p.  68)."  The  Court  reversed  the 
judgment  below,  holding  that  the  trial  court  erred 
in  directing  a  verdict,  and  finally  settled  the  dis- 
tinction between  the  power  of  a  trial  court  to 
direct,  and  to  set  aside,  a  verdict,  saying: 

"The  rule  that  a  verdict  may  be  directed  when- 
ever the  proof  is  such  that  a  decision  to  the  contrary 
might  be  set  aside  as  against  the  weight  of  evidence 
would  be  both  uncertain  and  delusive.  There  is 
no  standard  by  which  to  determine  when  a  verdict 
may  be  thus  set  aside.  It  depends  upon  the  dis- 
cretion of  the  court.  The  result  of  setting  aside 
a  verdict,  and  the  result  of  directing  one,  are  widely 
different,  and  should  not  be  controlled  by  the  same 
conditions  or  circumstances.  In  one  case  there  is 
a  re-trial.  In  the  other  the  judgment  is  final.  One 
rests  in  discretion;  the  other  upon  legal  right.  One 
involves  a  mere  matter  of  remedy  or  procedure. 
The  other  determines  substantive  and  substantial 
rights.  Such  a  rule  would  have  no  just  principle 
upon  which  to  rest.  ...  So  long  as  a  ques- 
tion of  fact  exists,  it  is  for  the  jury  and  not  for  the 
court.  If  the  evidence  is  insufficient,  or  if  that 
which  has  been  introduced  is  conclusively  an- 
swered, so  that,  as  a  matter  of  law,  no  question  of 
credibility  or  issue  of  fact  remains,  then  the  ques- 
tion being  one  of  law,  it  is  the  duty  of  the  Court  to 
determine  it." 


112  MOTION    TO    DIRECT,    ETC.,    VERDICT. 

The  Opinion  cites  the  decision  of  the  Fealey  case 
(supra),  as  disclosing  that  the  reversal  in  the  Link- 
hauf  case  was  upon  the  ground  that  the  proof 
amounted  at  most  to  a  mere  surmise,  and  that,  in 
the  Hemmens  case,  the  principle,  that,  if  there  is 
any  evidence  upon  a  question  of  fact,  it  should  be 
submitted  to  the  jury,  was  asserted. 

Therefore,  since  1901,  it  has  been,  and  presum- 
ably will  continue  to  be,  true  that  a  trial  judge 
should  not  nonsuit,  or  direct  a  verdict,  on  the 
ground  that  the  weight  of  evidence  is  so  decidedly 
preponderating  hi  favor  of  one  party  that  a  verdict 
contrary  to  that  preponderance  would  be  set  aside 
on  motion;  and  that  his  power  and  duty,  to  give 
such  a  direction  are  confined  to  cases  where  "no 
question  of  fact  exists." 

But,  as  stated  in  the  Fealey  Opinion,  the  hy- 
pothesis "that  there  is  no  evidence  to  go  to  a  jury" 
does  "not  mean  literally  none,  but  that  there  is 
none  that  ought  reasonably  to  satisfy  a  jury,  that 
the  fact  sought  to  be  proved  is  established."  The 
doctrine  of  a  "scintilla  of  evidence"  is  adverted  to. 
A  mere  scintilla  is  not,  now,  sufficient  to  carry  a  case 
to  the  jury,  and  the  judge,  not  the  jury,  is  to  say  that 
the  evidence  has  only  the  dimensions  and  vitality 
of  a  spark.  That  doctrine  is  explained  as  covering 
two  classes  of  cases:  one,  where  "the  proof  has  been 
a  mere  matter  of  inference";  and  the  other,  cases 
of  direct  evidence,  such  as  where  the  testimony  of 
a  witness  is  "in  such  contradiction  of  matters  of 


MOTION  TO   DIRECT,    ETC.,    VERDICT.  113 

common  knowledge,  or  the  laws  of  nature,  as  to 
be  incredible  as  a  matter  of  law."1 

Meanwhile,  the  former  rule  continues,  it  appears, 
to  prevail  in  the  Federal  Courts.  In  a  recent 
case,  in  the  Eighth  Circuit,  it  was  held,  that  a 
passenger  in  a  street  car,  who,  on  account  of  sud- 
den illness,  put  her  head  through  a  window  above 
a  screen  covering  the  lower  half  of  the  aperture, 
and  was  struck  by  a  trolley  pole,  she  being 
obliged  to  stand  up,  or  kneel,  on  the  seat,  in  order 
to  assume  the  position  mentioned,  was  guilty  of 
contributory  negligence,  as  matter  of  law. 

The  Court  said:  "While  the  questions  of  neg- 
ligence and  contributory  negligence  are  ordinarily 
questions  of  fact,  to  be  passed  upon  by  a  jury, 
yet  if  it  clearly  appears  from  the  undisputed 
facts,  judged  in  the  light  of  that  common  knowl- 
edge and  experience  of  which  courts  are  bound 
to  take  notice,  that  a  party  has  not  exercised 
such  care  as  men  of  common  prudence  usually 
exercise  in  positions  of  like  exposure  and  danger, 
or  where  the  evidence  is  of  such  conclusive  char- 
acter that  the  court  would  be  compelled  to  set  aside 
a  verdict  returned  in  opposition  to  it,2  it  may  with- 
draw the  case  from  the  consideration  of  a  jury. 
In  North  Penn.  R.  R.  v.  Commercial  Bank,3  the 
Supreme  Court  said:  'It  would  be  an  idle  pro- 
ceeding to  submit  the  evidence  to  the  jury  when 

i 163  N.  Y.,  p.  402.  3  123  U.  S.,  727;  8  Sup.  Ct.  R., 

2  The  italics  are  not  in  the  original.    226;  31  L.  Ed.,  287. 
8 


114    CONCLUSION,    AS  TO    DIRECTING,  ETC.,  VERDICT. 

they  could  justly  find  only  in  one  way.'  While 
the  plaintiff's  sudden  illness  placed  her  in  a  very 
uncomfortable  and  distressing  position,  yet  that 
fact  would  not  authorize  her  to  disregard  unmis- 
takable warnings  of  danger.  She  must  have  known 
that  the  heavy  screens  which  barred  the  windows 
were  placed  there  for  no  other  purpose  than  to 
prevent  passengers  from  extending  their  arms 
or  heads  out  of  the  windows,  as  the  meshes  in  the 
screen  were  too  large  to  serve  any  other  purpose. 
To  disregard  this  plain  warning  was,  we  think, 
such  contributory  negligence  upon  her  part  as 
will  necessarily  preclude  a  recovery  in  this  case." 

CONCLUSION  : 

In  conclusion :  the  practical  rule  is  at  length  defi- 
nitely settled,  in  New  York,  that  it  is  not  within 
the  province  of  the  court  to  prevent  a  verdict 
because  of  the  court's  apprehension  of  the  pre- 
ponderance of  evidence,  though  it  may  set  aside 
a  verdict,  and  grant  a  new  jury  trial,  upon  con- 
siderations in  that  regard.  But  a  reconciliation 
of  the  doctrine,  that  it  is  for  the  court  to  deter- 
mine that,  though  there  is  evidence,  to  go  to  the 
jury,  there  is  none  that  ought  reasonably  to  sat- 

»  Christensen  v.  Met.  St.  R'y,  137  U.  S.,  615;  Nor.  Pac.  R'y  v.  Free- 
Fed.  Rep.,  708;  U.  S.  C.  C.  A.,  man,  174  U.  S.,  379;  N.  W.  R.  R. 
April,  1905:  citing  R.  R.  Co.  v.  v.  Davis,  53  Fed.  Rep.,  61;  Mo.  Pac. 
Husen,  95  U.  S.,  465;  Schofield  v.  R'y  v.  Moseley,  57  Fed.  Rep.,  921. 
Chicago,  M.  &  St.  P.  R.  R.,  114 


CONCLUSION,   AS  TO  DIRECTING,   ETC.,   VERDICT.    115 

isfy  that  body  that  the  fact  sought  to  be  proved 
is  established,  instead  of  giving  them  a  chance  of 
a  vote,  with  the  unqualified  insistence  on  a  preser- 
vation of  the  sacred  right  of  trial  by  jury  inviolate 
forever — is  a  problem  that  will  remain  inscruta- 
ble as  long  as  the  dictum  de  omni  and  the  present 
constitution  of  the  human  mind  shall  survive. 


THE  END. 


INDEX. 


PAOB 

ABBOTT, 

definition  of  evidentiary  terms  by, 24 

ALLITERATIVE 

objection  to  evidence i,  76 

ANDERSON, 

definition  of  evidentiary  terms  by, 24 

ANGLICAN 

law  of  evidence,  nature  of, 4 

ARISTOTLE, 

dictum  of;  its  relation  to  judicial  evidence 6 

BENTHAM, 

definition  of  evidence  by, 2 

BEST, 

definition  of  evidence  by, 2 

BLACKSTONE, 

definition  of  evidence  by, 3 

BOUVIER, 

definition  of  evidentiary  terms  by, 25 

BRADNER, 

definition  of  relevancy,  by, 30 

117 


118  INDEX. 

PAGE 

BURRILL, 

definition  of  evidentiary  terms  by, 25 

CASES, 

adjudicating  on  objections  to  evidence 35-73 

CHAMBERLAYNE, 

definition  of  relevancy  by, 29 

CLASSES 

of  objections  to  evidence;  two  in  number 74 

COMPETENT 

evidence,  meaning  of, 34 

COSTS, 

evidence,  as  bearing  on  award  of, 61 

DECISIONS 

on  particular  objections  to  evidence 35-73 

DEFINITIONS: 

competency  of  evidence 24,  30 

competent    (evidence) 23,  24,  25,  32 

evidence 2, 3 

immaterial   (evidence) 25,  34,  75 

incompetency  of  evidence 32,  33 

incompetent  (evidence) 24,  34,  74 

irrelevant  (evidence) 24,  25,  75 

material  (evidence) 23,  24,  25,  33,  75 

materiality  of  evidence 33 

objection  to  evidence 12 

general 13 

specific 13 

relevancy  of  evidence 28,  29,  30,  31,  32 

relevant  (evidence) 23,  24,  25 


INDEX.  119 


PAGE 

DICTUM 

of  Aristotle,  universality  of, 6 


ENTHYMEME, 

employment  of,  in  reasoning 10 

ETYMOLOGY 

of  certain  evidentiary  attributives 23 

EVIDENCE, 

a  word  of  relation 2 

denned 2,  3 

when  deemed  wanting 112 

EVIDENTIARY 

fact  is  a  minor  premiss  of  syllogism 9 

distinguished  from  "fact  in  issue" 12 

EXCEPTION, 

what  objections  favorable  to  valid, 77 

FACT 

in  issue,  and  evidentiary  fact;  relation 12 

FEDERAL  COURT: 

definition  of  evidence  by, 3 

rule  in,  as  to  directing  verdict 113 

GENERAL 

objection  defined 13 

usually  unadvisable 13 

GREENLEAF, 

definition  of  competency  by, 30: 

evidence  by, 3 


120  INDEX. 

PAGE 

GROUND 

of  objection;  omission  to  state, 63 

HAMILTON 

case,  analysis  of  rule  established  by, 96,  101 

HEARSAY 

evidence    defined ,.. 6 

as  an  explicit  term  of  objection  to  evidence 76 

IMMATERIAL 

evidence,  distinguished  from  incompetent, 34 

INADMISSIBILITY 

and  incompetency  of  evidence,  compared 17,  19 

INCOMPETENT 

evidence,  meaning  of, 74 

INSTRUCTION 

to  jury,  to  disregard  evidence 85,  88 

IRRELEVANT 

evidence,  synonymous  with  immaterial, 105 

ISSUE, 

definition  of, 11 

etymology  of, 11 

JONES, 

definition  of  relevancy  by, 29 

JUDICIAL 

definitions  of  evidentiary   terms 31 

LOGIC, 

rules  of;  relation  to  evidentiary  rules 7 


INDEX.  121 

PAGB 

MATERIAL, 

as  applied  to  an  objection;  is  it  always  specific. .  .       7 

evidence,  meaning  of, 23,  30 

evidence,  substantially  synonymous  with  relevant,     75 

MOTION 

for  direction  of  verdict 106-115 

for  instructions  to  jury,  to  disregard  evidence,  rule 

governing, 104 

to  set  aside  verdict 106-115 

to  strike  out  evidence,  in  general  discretionary  .  .     83 

NONSUIT, 

when  proper 107 

OBJECTION 

to  evidence  denned 12 

general,    defined 13 

effect  of  overruling, 16 

sustaining, 16 

generally    hazardous 13 

specific,  defined 13 

effect  of  overruling, 21 

sustaining, 18 

purposes  of  requiring, ....  13,  14 

two  grand  classes  of, 74 

PLEA 

one  of  the  common-law  pleadings 11 

PLEADINGS 

at  common-law,  enumeration  of, 11 

purpose  of, 11 

PROBABILITY 

of  inference,  effect  of,  on  admissibility  of  evidence        9 


122  INDEX. 


PAGE 

PROTEST, 

marine,  status  of,  as  evidence 43,  44 


REBUTTER, 

one  of  the  common-law  pleadings 11 

REJOINDER, 

one  of  the  common-law  pleadings 11 

RELEVANCY, 

legal,  and  logical,  compared 31 

REPLICATION, 

one  of  the  common-law  pleadings 11 

REYNOLDS, 

definition  of  relevancy  by, 29 

SCINTILLA 

of  evidence,  doctrine  of, 106,  112 

SORITES, 

employment  of,  in  reasoning 10 

SPECIFIC 

objection  defined 13 

SPECIFICATION 

of  objection,  effect  of  wrong, 65 

SPECULATION 

on  forthcoming  evidence,  condemned 90 

STEPHEN, 

criticism  by,  of  negative  character  of  evidentiary 

rules 1 ,   5 

definition  of  relevancy  by, 28 


INDEX.  123 

PAGE 

STRIKING  OUT 

evidence,   distinguished  from  instruction  to  dis- 
regard,       83 

SURPRISE, 

prevention  of,  a  purpose  of  requiring  specific  ob- 
jection      14 

SURREBUTTER, 

one  of  the  common-law  pleadings 11 

SURREJOINDER, 

one  of  the  common-law  pleadings 11 

SYLLOGISM, 

logical,  employment  of,  in  forensic  proof 7 

TIMELY 

objection  to  evidence;   whether  indispensable..  .78,  92 

UNITING 

motions  to  strike  out,  and  for  direction  to  disre- 
gard,   evidence 91 

VERDICT, 

motion  to  direct, 106 

set  aside, 106 

WAIVER 

of  objection  to  evidence 82 

WHARTON, 

definition  of  relevancy  by, 28 

WIGMORE, 

definition  of  evidence  by, 3 


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